author: PRESIDING JUSTICE HARTMAN

text:
    FRANCISCO A. BERRIOS, Plaintiff-Appellee, v. RAY J. RYBACKI, Chairman, The Industrial Commission, et al., Defendants-Appellants.
    First District (2nd Division)
    No. 1—91—0685
    Opinion filed September 29, 1992.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Deborah L. Ahlstrand, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Thomas R. Challos, Jr., and Marshall E. Winokur, Ltd., both of Chicago (Thomas Challos and Marshall Winokur, of counsel), for appellee.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

The Illinois Industrial Commission, chairman, members and an arbitrator (collectively Commission) appeal the circuit court’s award of attorney fees to plaintiff’s lawyers for having successfully secured the invalidation by this court of an administrative rule in Berrios v. Rybacki (1989), 190 Ill. App. 3d 338, 546 N.E.2d 651, appeal denied (1990), 129 Ill. 2d 561.

The Commission questions whether a multiplier may be applied to calculate the attorney fees awarded under the Illinois Administrative Procedure Act (APA) (Ill. Rev. Stat. 1987, ch. 127, par. 1001 et seq.) and, assuming arguendo that the application of a multiplier is permissible under the APA, whether it was an abuse of discretion to utilize a multiplier in this case. Also challenged is the circuit court’s exercise of discretion in allowing allegedly duplicate hours and an hourly rate above that usually charged by plaintiff’s attorneys.

Francisco A. Berrios, plaintiff, was injured while employed in late 1985 and early 1986. He filed two worker’s compensation claims with the Commission. The claims were consolidated and scheduled for trial on October 23, 1987, before a Commission arbitrator. The latter dismissed the claims for want of prosecution when plaintiff and his attorneys failed to appear before her between 8:45 a.m. and 9:15 a.m. in order to take part in a new procedure called “trial order drawing.” The arbitrator told plaintiff’s counsel she was acting under the Commission’s “Chicago Arbitration Rules” (Chicago Rules).

Plaintiff did not refile or reinstate his claim, nor did he appeal the dismissals to the Commission. Instead, on November 12, 1987, he filed a declaratory judgment action against the chairman of the Commission, several commissioners and the arbitrator, challenging the Chicago Rules’ validity, and claiming the rules were adopted contrary to the procedures prescribed by the APA. Plaintiff also asserted that if the Chicago Rules were invalidated, he should be awarded reasonable costs and attorney fees under then designated section 14.1(b) of the APA. Ill. Rev. Stat. 1987, ch. 127, par. 1014.1 (section 14.1(b)) (now Ill. Rev. Stat. 1991, ch. 127, par. 1010-55(c)).

Following extensive discovery, the Commission moved for summary judgment, arguing that the Chicago Rules were not “rules” the adoption of which required compliance with the APA and that even if the procedures were “rules” under the APA, they fell within the exception for rules concerning an agency’s internal management. In deciding cross-motions for summary judgment on August 31, 1988, the circuit court granted the Commission’s motion for summary judgment. The court found that the chairman was authorized to issue Commission internal management directives in a manner consistent with existing rules and statutes, of which the directive at issue was one.

Plaintiff appealed. While his case was pending, he settled his worker’s compensation claim. On appeal, this court agreed that plaintiff’s individual challenge to the Chicago Rules became moot upon settlement; however, we permitted the appeal to proceed under the public interest exception to mootness. (Berrios, 190 Ill. App. 3d at 344.) We reversed, finding the internal management exception applied only to agency statements not affecting private rights or procedures available to persons or entities outside the agency. (Berrios, 190 Ill. App. 3d at 344-45.) We also found that the rule at issue did affect private rights and procedures and, therefore, should have been published in the Illinois Register with notice to the public, comments invited or hearings held, and filed with the Secretary of State. (Ill. Rev. Stat. 1987, ch. 127, pars. 1005, 1005.01.) We directed, upon remand, the entry of summary judgment in plaintiff’s favor, solely as it relates to the public interest, as well as the circuit court’s consideration of restraining enforcement of the Chicago Rules locally and statewide, and for such further relief as may be necessitated under plaintiff’s complaint. Berrios, 190 Ill. App. 3d at 348-49.

The circuit court entered an order following the remand instructions on March 19, 1990, premised upon certain stipulations and agreements between the parties. In substance, it was agreed (1) the Chicago Rules (except for one modification) would remain in force pending the promulgation of new rules; (2) certain claimants whose cases were dismissed pursuant to Chicago Rules would have the opportunity to reinstate their claims; (3) the Commission would post and publish notices regarding reinstatement of cases; (4) the chairman of the Commission would schedule public hearings regarding the adoption, amendment or repeal of previously (properly) promulgated rules; and (5) plaintiff’s attorneys are entitled to fees and costs for institution of the action as provided by the APA. Pursuant to the agreement, the Commission endeavored to reinstate over 100 cases.

On June 29, 1990, plaintiff’s attorneys, Thomas R. Challos, Jr., and Marshall E. Winokur (sometimes petitioners), each filed their first petition for attorney fees and costs. From October 23, 1987, through June 21, 1990, Challos claimed 284.75 hours of work spent on plaintiff’s lawsuit and $1,801.81 in expenses. From October 23, 1987, to June 20, 1990, Winokur claimed 220.90 hours and $380.50 in expenses attributed to plaintiff’s case. Included within the time frame were the original circuit court proceedings, the appeal and part of the activity on remand. Neither attorney claimed an hourly rate in his initial petition.

On August 16, 1990, petitioners filed a joint petition regarding the prospective attorney fee award, claiming that under the APA reasonable expenses and attorney fees should include a “lodestar” of $235 per hour, to be weighted by a “multiplier” of three to reflect the contingent nature of the action and the public benefit. The public benefit was identified as the reinstatement of more than 100 dismissed workers’ compensation cases.

On September 6, 1990, the Commission objected to the attorneys’ fee request on three bases. First, certain hours claimed were either duplicative or inappropriately claimed; second, the hourly rate requested was not reasonable, where both attorneys customarily charge $150 per hour; and third, the use of a multiplier under section 14.1(b) was inappropriate.

On October 22, 1990, the circuit court held a hearing on the fee petitions. Petitioners called two expert witnesses and testified themselves as witnesses.

William J. Harte, an attorney licensed to practice in Illinois since 1959, was called as an expert. Harte testified that he knew both attorneys, considered their reputations to be exemplary, and recognized their abilities in handling complex litigation. He asserted that “what one would expect a rate to be charged by a person of the competency of the petitioners and other lawyers in addressing this kind of litigation” would be the $235 hourly rate requested as a lodestar.

In regard to the use of a multiplier, Harte stated:

“Where you have a rate fixed as a result of statutory authority and where you have the compensation being paid by the State here *** and where you do not have a specific fund from which the fee can be obtained, that is, from the class members who actually experienced the benefit, the question becomes sharper in my view.”

He concluded, however, an increase by a multiplier of three was appropriate due to the case being contingent and risky against a government entity, the kind of case which is lost more often than won, the “extreme” competence of opposing counsel, and the public benefit obtained by other claimants whose cases were reinstated.

On cross-examination, Harte acknowledged that none of the cases upon which he relied regarding fee awards were brought pursuant to the APA. He also asserted that he never received a multiplier in a non-class-action suit. He considered the present case to be a class action request, however, despite the absence of such allegations in the pleadings and lack of class certification, because the case fell into the public interest exception to mootness.

Arthur Susman, an attorney licensed to practice in Illinois since 1959, specializing in class actions, testified regarding hourly rates. In his opinion, the fair and reasonable hourly rate for attorneys similar to those in the present case, complex litigation, would be $235 per hour with a multiplier of three. Susman was of the opinion that attorney fees under the APA for this case should be awarded as in class action suits because the case benefitted more than one person. Additionally, a multiplier was justified due to the contingent nature of the cause. Susman added that the multiplier should be applied only until the time the suit became noncontingent, which was in March of 1990 upon remand. He urged that a multiplier was appropriate in cases against a public body because of the great difficulty in litigating against the government and because of the high risk of loss. The lack of class certification or of a common fund to pay attorney fees did not alter his view regarding the multiplier.

On cross-examination, Susman asserted that he had reviewed only the fee petitions and responses, not the pleadings or briefs. His opinion about the case’s significance was based upon conversations with the attorneys. He never handled an administrative procedure case and knew of no cases under the APA for fees based on a lodestar with a multiplier. In cases applying multipliers, the normal range is lVz to 3, depending on the contingency of the case and the quality of work. He believed that multipliers applied to cases won compensate the attorney for lost cases.

Challos testified that he had been an attorney since 1966. On plaintiff’s settled claim against his employer, Challos received an attorney fee award of $6,000 pursuant to the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.). Over 99% of his work is performed on a contingency fee basis. Currently, and within the last five years, he has charged some businessmen as clients a flat hourly rate of $150. He had no prior experience with cases filed under the APA.

Winokur testified that he had been an attorney since 1952. He acknowledged this was his first APA case. He had no fee schedule and his hourly fee clustered around $150 per hour, but was sometimes lower for certain clients.

No evidence was offered with respect to the fee arrangement between plaintiff and petitioners Challos and Winokur. No evidence was offered in refutation of the testimony given by plaintiff’s experts Harte and Susman.

The circuit court found a public benefit in that numerous cases were reinstated. Considering the degree of difficulty due to the circuit court’s original ruling against plaintiff, attorney fees were set at $210 per hour with a multiplier of two to be applied until March 15, 1990. On October 24, 1990, the court entered judgment on fees and costs for the time period of October 23, 1987, through March 15, 1990, at the above rate. The sum of $109,725 was calculated for Challos’ fees with an additional $1,801.81 in expenses and $87,276 in fees was awarded to Winokur with $376.50 in expenses.

On November 7, 1990, Challos filed a supplementary petition for attorney fees covering the period of March 16, 1990, to October 30, 1990. He claimed 51 hours and 5 minutes at $210 per hour, totalling $10,727.50.

On November 9, 1990, Winokur filed a petition for additional attorney fees for the period of March 16, 1990, through October 24, 1990. He alleged 52.5 hours at $210 per hour, totalling $11,025.

The Commission filed a motion to reconsider on November 21, 1990, arguing lack of evidence to support the hourly rate, where the attorneys had testified to charging $150 per hour prior to this litigation. Also asserted was that there was a lack of authority and evidence to justify a multiplier in an APA case. Petitioners responded that the award was within the court’s discretion based upon the evidence and case law.

On January 30, 1991, the motion for reconsideration was denied, and attorney fees of $10,727.50 and $11,025 were awarded to Challos and Winokur, respectively. The October 24, 1990, and January 30, 1991, orders were stayed pending appeal on February 8, 1991. On March 1,1991, the Commission filed a notice of appeal.

I

The Commission contends that the application of a multiplier to an attorney fee award under the APA is unauthorized.

The proper construction of section 14.1 in relation to attorney fees first must be undertaken. Construction of the statutory fee provision is a question of law (Berrios v. Rybacki (1989), 190 Ill. App. 3d 338, 348, 546 N.E.2d 651), as is the question of whether that section allows the use of a multiplier. Section 14.1(b) is in derogation of common law because the right to an attorney’s fee from one’s opponent did not exist at common law (Gonzales-Bianco v. Clayton (1983), 120 Ill. App. 3d 848, 458 N.E.2d 1156), and must be strictly construed. (Clayton, 120 Ill. App. 3d at 850.) In construing the provisions of section 14.1(b), we look to the plain language of the statute. (Metropolitan Life Insurance Co. v. Washburn (1986), 112 Ill. 2d 486, 493 N.E.2d 1071.) Section 14.1(b) provides:

“In any case in which a party has any administrative rule invalidated by a court for any reason, including but not limited to the agency’s exceeding its statutory authority or the agency’s failure to follow statutory procedures in the adoption of the rule, the court shall award the party bringing the action the reasonable expenses of the litigation, including reasonable attorney’s fees.” Ill. Rev. Stat. 1987, ch. 127, par. 1014.1(b).

Based upon the foregoing statutory language, as the Commission asserts, a multiplier under section 14.1(b) was unjustified because multipliers are based upon the contingent nature or risk of litigation, thereby providing compensation for cases lost. The plain language of the statute demonstrates the General Assembly’s intent to limit an award under section 14.1(b) to an amount for reasonable expenses paid or incurred in the particular successful litigation brought by the parties. No compensation is contemplated for prior or future lost or won causes. A rule declared invalid in one case cannot give rise to attorney fees in a separate case, for example, under section 14.1(b). (Sutton v. Edgar (1986), 147 Ill. App. 3d 723, 498 N.E.2d 295.) By interpreting “attorney fees” as being an expense of litigation, and “expenses” as meaning monetary payment or financial loss, an award under section 14.1(b) must be read to refer to reimbursement or compensation for presently and successfully litigating a rule’s invalidity. Limiting awards to such particular cases excludes the use of a multiplier because, as one of its purposes in application, the multiplier provides compensation for the loss of other causes.

Petitioners insist that the use of the words “shall” award expenses including attorney fees, rather than “may,” and use of the word “reasonable” in section 14.1(b), requires a liberal construction of the section, which would allow the use of a multiplier. Their argument does not persuade. In a class action case, plaintiff attorney’s fees and expenses are not charged against the adversary, but against persons or entities that are benefitted by funds created or preserved by the plaintiff’s success. (Saltiel v. Olsen (1981), 85 Ill. 2d 484, 426 N.E.2d 1204.) Here there is no fund and the fees would be paid from tax revenues.

The class action attorney fee award is unlike the common contingent fee. The class action fee award does not result from a voluntary agreement between the client and his attorney, but is an amount taken by order of the court from money belonging to others who also benefited, which is dependent upon the exercise of the court’s sound discretion. (Fiorito v. Jones (1978), 72 Ill. 2d 73, 377 N.E.2d 1019.) No doubt these distinctions were contemplated by expert witness Harte when he noted that “the question becomes sharper” under these present circumstances.

Petitioners suggest that they merely seek fee shifting, rather than withdrawal from an established fund. Here, the term “reasonable” would be utilized to secure enhanced fees not from a common fund established in a class action case for all successful litigants, but from the State’s general revenue fund. How this would make the multiplier more reasonable is neither explained nor discernible. Such an interpretation is unauthorized, unprecedented and cannot be inferred fairly from the language of section 14.1.

The parties additionally rely upon legislative debates in their proposed construction of section 14.1(b). (Chicago Tribune Co. v. Johnson (1985), 106 Ill. 2d 63, 477 N.E.2d 482.) Although it is true, as petitioners maintain, that no mention is made in the debates of a cap on fees, and the legislators were aware of the Federal cap of $75 per hour for attorney or agent fees awarded under the Equal Access to Justice Act for similar situations (5 U.S.C. §504 (1988)), yet, the Illinois legislators were concerned with limiting liability under section 14.1 specifically to when the agency made untrue charges, found to be untrue or without reasonable cause (section 14.1(a)) and when a rule was successfully overturned (section 14.1(b)). (82d Ill. Gen. Assem., House Proceedings, June 16, 1981, at 132.) Significantly, no reference is made to a multiplier in the debates, although its use then, as now, was well known.

The Commission maintains that the allowance of a multiplier will have two significant ramifications on State government. First, it will deplete the general revenue funds because a multiplier will be routinely requested and may be awarded due to the inherent risk of loss in every case. Second, there would be an adverse effect upon the agencies, which would (1) chill promulgation of rules which are not explicitly required by statute; (2) promulgate internal procedures as regulations to be “safe” so that they do not result in substantial dollar litigation; and (3) make the internal procedures very general and, therefore, meaningless or so numerous and specific in anticipation of every circumstance as to be burdensome, costly and rigid.

In Federal cases, a number of factors have been considered in analyzing the application of a multiplier to attorney fees. Among those factors that have been included are (1) the intended scope of a sovereign’s waiver of immunity (Pierce v. Underwood (1988), 487 U.S. 552, 101 L. Ed. 2d 490, 108 S. Ct. 2541 (Pierce)); (2) the difficulty of the case, skill of counsel and results obtained are already reflected in the market rate (Pierce, 487 U.S. 552, 101 L. Ed. 2d 490, 108 S. Ct. 2541); (3) the lodestar figure includes most if not all relevant information constituting a reasonable attorney fee (Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air (1986), 478 U.S. 546, 92 L. Ed. 2d 439, 106 S. Ct. 3088 (Delaware I)); (4) a multiplier based upon risk compensates attorneys for unsuccessful claims, which is inconsistent with an intent to award attorney fees only to a prevailing party (Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air (1987), 483 U.S. 711, 97 L. Ed. 2d 585, 107 S. Ct. 3078 (plurality) (Delaware II)); (5) inaccuracies exist in determining the multiplier due to the court’s retroactive estimate of the prevailing party’s chances for success; (6) defendants with stronger cases are penalized by subsidizing plaintiff’s attorney for prior unsuccessful cases (Delaware, 483 U.S. 711, 197 L. Ed. 2d 585, 107 S. Ct. 3078); and (7) increased fees based upon risk create windfalls for attorneys because a lodestar already considers the attorneys’ skill, experience and hours of work, the true factors in success (Delaware, 483 U.S. 711, 97 L. Ed. 2d 585, 107 S. Ct. 3078). Each of the foregoing arguments equally can be applied to the case sub judice in defeat of a multiplier enhancement here.

Although multipliers in fee shifting statutes are not always precluded, their use is greatly restricted and requires a high standard of proof to justify. (See Delaware, 483 U.S. at 731, 97 L. Ed. 2d 585, 107 S. Ct. 3078; Delaware I, 478 U.S. at 569, 92 L. Ed. 2d at 459, 106 S. Ct. at 3100 (Blackmun, J., dissenting, joined by Marshall & Brennan, JJ.); Board of Education of the Aptakisic-Tripp School District No. 102 v. County of Lake (1987), 156 Ill. App. 3d 1064, 509 N.E.2d 1088.) Further, if a benefit to the public is a justification for a multiplier, then any award under section 14.1(b) would be subject to a multiplier because a change in a rule always would logically affect others.

The use of a multiplier in this statutory fee setting was unauthorized and improper, and must be reversed and vacated.

In light of the foregoing analysis and result, we need not address the Commission’s contention that the application of a multiplier was an abuse of discretion in this case.

II

The Commission urges that the circuit court abused its discretion in allowing duplicate hours and hourly rates above petitioners’ usual billing rates.

The Commission contends that duplicate hours were spent and billed by petitioners while they simultaneously went to court, took depositions, had conferences, and conducted research. Payment for employment of two or more attorneys is not in violation of case law and is recognized as a common practice which may ensure an economical division of labor (see Kurowski v. Krajewski (7th Cir. 1988), 848 F.2d 767, 776), as well as a means of ensuring that significant facts or inquiries are not overlooked. Bohen v. City of East Chicago (N.D. Ind. 1987), 666 F. Supp. 154, 157.

The Commission further avers that petitioners have never charged the $210-per-hour rate awarded and should not charge the State what they would not have charged the client. Petitioners respond that $210 per hour was reasonable because it was in accord with the testimony given, notwithstanding the fact that the court was not bound by the experts’ opinions. Experts Harte and Susman both testified that the prevailing market hourly rate for services of the type rendered by petitioners was $235 per hour, an amount chargeable by attorneys of reasonably comparable skill, experience and reputation. No evidence to the contrary was adduced by the Commission. The circuit court adopted a rate within the range of the evidence. We find no error.

For the reasons set forth, we reverse and vacate the application of a multiplier to the attorney fees awarded in the case; affirm the hourly rate of $210 established by the circuit court; and remand for further proceedings consistent with this opinion and consideration of additional fees as the court finds attributable to the appeal.

Affirmed in part; reversed and vacated in part; and remanded for further proceedings.

SCARIANO and DiYITO, JJ., concur.

       “Lodestar” has been defined otherwise as the product of reasonable hours multiplied by a reasonable rate. See Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air (1986), 478 U.S. 546, 565, 92 L. Ed. 2d 439, 456, 106 S. Ct. 3088, 3098.

       This apparently represents the date on which the case became “noncontingent,” upon remand by this court.

       Ordinarily, “contingency” contracts for attorney fee charges relate to a percentage of the judgment or award secured by the attorney for his or her client. Where there is no judgment or award because the case was lost, there is no attorney fee due and owing from the client. Here, the risk or contingency is one in which the challenge to a rule may have been victorious, in which an attorney fee would have been allowed under section 14.1(b), or the challenge may have been defeated, in which instance no fee is contemplated by the statute.

       The Commission asserts that the experts did not testify as to the proper hourly rate for APA cases. A reading of the record, however, shows that the experts assayed the value of the fee regardless of whether the case would be classified as an APA case or as a class action.


source: Caselaw Access Project

license: Public Domain

text:
    ELAINE C. HERRIOTT, Plaintiff-Appellee, v. CHARLES B. POWERS, Defendant-Appellant.
    First District (2nd Division)
    No. 1—91—1964
    Opinion filed September 29, 1992.

      Ancel, Clink, Diamond & Cope, P.C., of Chicago (Michael W. Tootooian, of counsel), for appellant.
    Carey & Carey, of Blue Island (Michael D. Carey, of counsel), for appellee.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Village of Tinley Park Director of Public Works Charles B. Powers, while driving a village-owned automobile between village work sites, collided with plaintiff Elaine C. Herriott’s vehicle. Plaintiff sued Powers after lapse of the one-year statutory limitation period for commencement of civil injury actions against local governmental employees, contained in section 8 — 101 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1987, ch. 85, par. 8 — 101 (section 8 — 101 of the Act)). A jury returned a $20,550 verdict against Powers, which was reduced by $10,275 due to plaintiff’s 50% negligence. Powers appeals, contending among other arguments that (1) the court’s reliance on Currie v. Lao (1990), 198 Ill. App. 3d 625, 556 N.E.2d 318, aff’d (1992), 148 Ill. 2d 151 (Currie), was misplaced and contrary to legislative and judicial intention; and (2) that the court should have granted Powers’ motion for a directed verdict on his affirmative defense.

The collision occurred on March 24, 1987. Plaintiff filed suit on November 9, 1988, and served the village attorney and clerk with notice of the village’s alleged liability for “the negligent and dangerous driving of a [vjillage employee, Charles.” On December 12, 1988, Powers moved to dismiss plaintiff’s complaint pursuant to section 2— 619 of the Civil Practice Law (Ill. Rev. Stat. 1989, ch. 110, par. 2— 619), for plaintiff’s failure to file her lawsuit within section 8 — 101’s one-year requirement for suits brought against local governmental employees. The court denied the motion without prejudice, finding Powers’ attached affidavit insufficient to prove he was acting in the scope of his employment. Powers was given time to answer or otherwise plead.

Powers answered and asserted as an affirmative defense that the suit should be dismissed pursuant to section 8 — 101 because it was filed more than one year after the accident. He maintained that at all relevant times he was acting within the scope of his employment as director of public works and was driving a village-owned vehicle. He urged that plaintiff was therefore required to file her complaint within the one-year limitation of section 8 — 101. Plaintiff answered and denied that Powers was acting within the scope of his employment.

On January 30, 1990, Powers moved for summary judgment (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005), contending once again that he was entitled to the protections of section 8 — 101. Plaintiff responded, alleging (1) the one-year limitation period did not apply because Powers was sued individually and not as an agent or employee of the village and (2) summary judgment was inappropriate because a material issue of fact remained as to whether the events complained of occurred during the course of Powers’ employment.

At trial, Powers testified that he was a salaried village employee on duty 24 hours per day. On the morning of the accident, at about 6:55 a.m., at the village hall, he picked up the village-owned and maintained automobile he used for his village duties. He drove to and inspected a village retention pond, which was under the jurisdiction of the public works department. He then drove toward a village garage at 183rd Street and 80th Avenue, where he intended to talk with his superintendents and to Street Superintendent Philip Sears (Superintendent Sears). Powers traveled south on Harlem Avenue, and the accident involving plaintiff’s vehicle occurred at 171st Street. Powers’ vehicle struck plaintiff’s car. On cross-examination, Powers asserted that the village vehicle he drove was assigned to the public works department and used by the mayor, trustees and superintendents. Powers always had a set of keys. Other facts relating to the accident and ensuing damages are unnecessary to our disposition and need not be recounted here.

The circuit court admitted into evidence plaintiff’s notice which informed the village of its alleged liability due to Powers’ conduct. The court decided that whether the notice was probative of Powers’ conduct having been within the scope of his employment was a jury question.

Tinley Park Public Works Department head mechanic Charles Petrak testified that he oversees the maintenance of all public works and police vehicles. In March of 1987, Powers had access to the village vehicle involved in the accident for which the village provided gas and maintenance.

Tinley Park Public Works Department Water and Sewer Superintendent Thomas E. Albright came upon the accident scene. He verified that Powers was driving a village-owned vehicle, which was usually parked at the village hall.

Superintendent Sears, in charge of retention ponds, testified that Powers would take notes for any jobs coming up or things needing repair and relate the notes to one of the superintendents. In the mornings, Sears and Powers would usually meet to talk about various public works department activities.

At the close of his evidence, Powers moved for a directed verdict as to his affirmative defense, urging that the evidence clearly showed he was acting within the scope of his employment at the time of the accident. The court reserved its ruling because plaintiff announced that she was going to provide further evidence regarding Powers’ scope of employment.

During a jury instruction conference, plaintiff objected to the issue of scope of employment being presented to the jury and, accordingly, moved to strike Powers’ affirmative defense. Powers responded that he had produced sufficient evidence to prove his affirmative defense and, therefore, the jury should be instructed to answer a special interrogatory asking whether he was acting within the scope of his employment. Powers added that the interrogatory would preserve the issue for possible appellate review.

The circuit court articulated the issue as whether Powers could invoke section 8 — 101’s statute of limitations, with a subissue of whether Powers was an employee for the purposes of the limitation period. Holding that the issue was legal and not factual, the court found that the Act was not intended to provide immunity for personal actions of persons who are not directly involved in the performance of their municipal duties, finding that driving down the street or public highway was not in the direct performance of Powers’ job. The court added that plaintiff had no way of knowing Powers was driving a government vehicle and that there was no governmental action. The collision was strictly an automobile accident on a public highway and not a governmental accident. Thereafter, the court struck the affirmative defense, refused to submit Powers’ special interrogatory and withdrew from evidence the daily attendance record and employer’s report of injury. Jury instructions regarding scope of employment were refused over Powers’ objection. The court cited Currie as support for its decision.

The jury was instructed that, as a matter of law, it will not consider the issue of whether Powers was acting as an employee. The jury was told to disregard any evidence on that issue, specifically testimony regarding the notice given to the village, the village attendance record and the employer’s report of injury.

The jury found for plaintiff as previously noted.

I

Powers contends that the court’s reliance on Currie was misplaced and contrary to legislative and judicial intention.

In Currie, a motorist brought an action against an Illinois State trooper for personal injuries and property damage arising from an automobile collision. On appeal, the trooper urged that the circuit court lacked subject matter jurisdiction and that the common law doctrine of public official’s immunity shielded him from personal liability. The appellate court disagreed and was affirmed by the supreme court. The trial record reveals that the court relied on Currie in support of its refusal to apply section 8 — 101’s one-year statute of limitations. Plaintiff maintains this support arises from a definition of acting within the scope of employment which is allegedly articulated in Currie. We disagree.

Currie involves the application of statutory and common law immunity, which is not at issue here. Section 8 — 101, of which Powers seeks enforcement, while part of the Tort Immunity Act, does not prescribe immunity, but mandates that civil actions for injuries against a local entity or “any of its employees” be brought within one year from the date the injury was received or the cause of action accrued. Were this case about immunity, Currie would fully apply. Instead, the question presented is about a statute of limitations, which was neither at issue nor discussed in Currie. Plaintiff has cited no case, nor have we found any authority, which supports plaintiff’s position here that section 8 — 101 is no longer viable. Section 8 — 101 does not purport to immunize Powers from liability. Rather, it limits the time within which an action against him can be brought. Unlike immunity provisions, section 8 — 101 does not create a shield from liability, nor does it control whether one can hold a person or entity liable. It is simply a limitation upon the time allowed for commencing an injury action. Currie and immunity principles are not material to the application of section 8 — 101.

Plaintiff maintains that her suit in this case purports to be only against Powers in his individual capacity. Nevertheless, section 9 — 102 of the Act provides that “[a] local public entity is empowered and directed to pay any tort judgment or settlement for compensatory damages for which it or an employee while acting within the scope of his employment is liable.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 85, par. 9 — 102.) (Section 9 — 102.) This statute “makes government entities liable for individual capacity claims when those claims are predicated on an employee’s acts within the scope of his employment.” (Hall v. Sanchez (N.D. Ill. 1989), 708 F. Supp. 922, 925 (and Illinois authority there cited).) The village here, being “directed” by statute to pay any tort judgment against its employees under such circumstances, is clearly exposed to potential liability for any ultimate judgment plaintiff may secure in this case.

The reasons underlying the requirement for timely action by claimants against local governmental entities and their employees were succinctly and forcefully set forth in Saragusa v. City of Chicago (1976), 63 Ill. 2d 288, 293, 348 N.E.2d 176, where our supreme court observed:

“The notice requirement of section 8 — 102 is to be read together with the limitations provision of section 8 — 101, which, at the time of the plaintiff’s accident, required that suit be filed within one year (Ill. Rev. Stat. 1971, ch. 85, par. 8 — 101), as opposed to the two-year period of limitations which is generally applicable to actions for personal injuries (Ill. Rev. Stat. 1971, ch. 83, par. 15).
A common purpose of these two provisions, whose antecedents were first enacted in 1905 (Laws of 1905, at 111, secs. 1, 2), is to encourage early investigation into the claim asserted against the local government at a time when the matter is still fresh, witnesses are available, and conditions have not materially changed. (Helle v. Brush (1973), 53 Ill. 2d 405, 407-408; Reynolds v. City of Tuscola (1971), 48 Ill. 2d 339, 342; King v. Johnson (1970), 47 Ill. 2d 247, 250-51; cf. 56 Am. Jur. 2d Municipal Corporations, sec. 686 (1971).) Because a local government entity must anticipate that the number of claims made against it will far exceed those brought against a private individual, the provision of an abridged period of time within which a claim must be asserted is reasonable, and the constitutionality of section 8 — 101 and of section 8 — 102 has accordingly been upheld against the charge that they form an unconstitutional classification. King v. Johnson (1970), 47 Ill. 2d 247; House wright v. City of LaHarpe (1972), 51 Ill. 2d 357; Fanio v. John W. Breslin Co. (1972), 51 Ill. 2d 366.”

The fact that plaintiff elected to abandon her action against the village does not alter the effect of her suit. A successful result could lead to the potential liability of the village, under section 9 — 102 of the Act, to pay the judgment, without having had the benefit of utilizing those objectives of the statute as outlined in Saragusa above. Had suit been brought in a timely fashion, the village would have been afforded the opportunities to investigate and prepare for its potential involvement through its employee, Powers. Plaintiff may not accomplish indirectly that which she is precluded from doing directly, if Powers was acting within the scope of his employment.

“Acting within the scope of his employment” in this context does not refer to sovereign immunity, as in Currie, but invokes the relationship of principal and agent, resulting in application of the traditional respondeat superior doctrine, and making the negligence of the employee imputable to his employer, here the village. See, e.g., Pyne v. Witmer (1989), 129 Ill. 2d 351, 359-60, 543 N.E.2d 1304; Estate of Ahmed v. County of Cook (1986), 146 Ill. App. 3d 719, 497 N.E.2d 346; Zagar v. Health & Hospitals Governing Comm’n (1980), 83 Ill. App. 3d 894, 404 N.E.2d 496; Argento v. Village of Melrose Park (7th Cir. 1988), 838 F.2d 1483.

Reliance by the circuit court upon Currie was misplaced; failure to apply section 8 — 101 was error, and must be reversed.

II

Powers maintains that the facts adduced at trial provide grounds for a verdict directed in favor of his affirmative defense and, therefore, we should remand this matter to the circuit court with instructions to enter judgment for Powers due to plaintiff’s failure to comply with section 8— 101.

At trial, unrebutted evidence was adduced supporting Powers’ affirmative defense, particularly that he was acting within the scope of his employment at the time of the collision. Prior to the accident, Powers, who was on duty 24 hours per day, went to the village hall, picked up his assigned village vehicle, retrieved notes and a clipboard to use for village business, drove to inspect a village retention pond and proceeded in the village vehicle to a village garage for a meeting with a village superintendent to talk and give him notes regarding the retention pond. Plaintiff produced no evidence disputing any of these facts.

Powers moved for a directed verdict, urging that the evidence clearly showed he was acting within the scope of his employment at the time of the collision. The court reserved ruling because plaintiff expected to provide further evidence regarding scope of employment. After striking Powers’ affirmative defense, however, the court found the issue moot.

No evidence was received which demonstrated that Powers was not acting within the scope of his employment, from the standpoints of sections 8 — 101 and 9 — 102. This conclusion is strengthened by plaintiff’s admission in her pleadings that the vehicle Powers operated was village owned. Further, a prima facie case of agency between Powers and the village was raised by proof that Powers was driving a village-owned vehicle. Bell v. Reid (1983), 118 Ill. App. 3d 310, 313, 454 N.E.2d 1117; see Illinois Pattern Jury Instructions, Civil, No. 50.08 (3d ed. 1992).

A directed verdict must be granted when the evidence, viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.) If reasonable minds may differ as to the inferences and conclusions to be drawn from the facts, however, it is improper to direct a verdict. (Fakhoury v. Vapor Corp. (1987), 154 Ill. App. 3d 531, 507 N.E.2d 50.) Here, the unrebutted evidence strongly supports a finding that Powers was acting within the scope of his employment, from the perspectives of sections 8 — 101 and 9 — 102. A contrary verdict could not stand, particularly in light of the absence of countervailing testimony or any suggestion by plaintiff of what such evidence might be.

The circuit court should have granted the motion for a directed verdict in Powers’ favor at this juncture. Failure to have done so was error, and we are obligated to reverse and remand to the circuit court for entry of an order granting judgment for Powers on his affirmative defense that he was operating a village-owned vehicle within the scope of his employment at the time of the accident, and that plaintiff failed to bring her action within the applicable statute of limitations, section 8 — 101.

In light of our disposition of this appeal, we need not consider other issues raised by Powers.

For the reasons set forth above, the cause is reversed and remanded with instructions set forth above.

Reversed and remanded, with instructions.

DiVITO and McCORMICK, JJ., concur.


author: JUSTICE McCORMICK

text:
    MARK R. STEPHENS, Petitioner-Appellant, v. THE EDUCATION OFFICERS ELECTORAL BOARD, COMMUNITY COLLEGE DISTRICT No. 504, COOK COUNTY, et al., Respondents-Appellees.
    First District (2nd Division)
    No. 1—91—3193
    Opinion filed September 29, 1992.
    Storino, Ramello & Durkin, of Rosemont (Michael K. Durkin, of counsel), for appellant.
    Kusper & Raucci, Chartered, of Chicago (Andrew M. Raucci, of counsel), for appellees.
   JUSTICE McCORMICK

delivered the opinion of the court:

Respondent James V. Lorenzo filed two complete sets of nomination papers for the November 1991 election of members of the Board of Trustees for Community College District No. 504 (Board of Trustees). Petitioner Mark R. Stephens objected to Lorenzo’s second set of nomination papers. Respondent Education Officers Electoral Board, Community College District No. 504, Cook County, Illinois (Electoral Board), granted Lorenzo’s motion to strike and dismiss Stephens’ objection. On petition for judicial review, the trial court sustained the decision of the Electoral Board. Stephens appeals. Because we find that Lorenzo’s second set of nomination papers “added to” his first set in violation of section 10 — 4 of the Election Code (Ill. Rev. Stat. 1991, ch. 46, par. 10 — 4), we reverse.

On August 19, 1991, Lorenzo filed nomination papers for the office of trustee of Community College District No. 504 (the district). One week later he filed a second set of nomination papers which also presented Lorenzo as a candidate for trustee of that district. On August 28, 1991, the district held a lottery to determine ballot placement for the November 5, 1991, election of trustees, at which two candidates were to be elected to the board. The two candidates on the ballot who received the most votes would be elected as trustees.

Lorenzo received the eighth ballot spot based on his first set of nomination papers, and the fourteenth and final ballot spot based on his second set of papers. Stephens, who filed only one set of nomination papers, received the eleventh spot on the ballot.

On September 3, 1991, Stephens filed objections to Lorenzo’s second set of papers with the Electoral Board, asking for a declaration that the second set of papers was void as surplusage. That same day, Lorenzo withdrew his first set of nomination papers. The Electoral Board held a hearing on Stephens’ objections on September 7, 1991, and it granted Lorenzo’s oral motions to strike and dismiss the objections by written order issued on the day of the hearing.

Stephens petitioned for judicial review of the Electoral Board’s ruling. The trial court heard oral argument on the petition on October 3, 1991, and on that same day the court issued an order sustaining the Electoral Board’s order. Stephens filed a notice of appeal the next day.

This court denied petitioner’s motion for expedited appeal. On November 5, 1991, petitioner was elected to the Board of Trustees, and Lorenzo lost his bid to become a trustee. Lorenzo filed no brief in opposition to Stephens’ brief on this appeal. The Electoral Board asks us to dismiss the appeal as moot.

A case is moot if “no actual controversy exists or where events occur which render it impossible for the court to grant effectual relief.” (People v. Lynn (1984), 102 Ill. 2d 267, 272, 464 N.E.2d 1031.) Since Stephens has been elected to serve as trustee, and Lorenzo has been defeated, there does not appear to be any relief this court can grant which would have any effect on the controversy which precipitated this lawsuit.

However, this court has the power to decide a technically moot case if the issues presented are capable of repetition, yet evading review. Butler v. State Board of Elections (1989), 188 Ill. App. 3d 1098, 545 N.E.2d 165.

“This exception is limited to situations where, first, the challenged action is in its duration too short to be fully litigated prior to its cessation and, second, where there is a reasonable expectation that the same complaining party would be subject to the same action again.” Butler, 188 Ill. App. 3d at 1101.

Since the time between the deadline for filing nomination petitions and the election here was 10 weeks, as prescribed by statute (Ill. Rev. Stat. 1991, ch. 46, par. 10 — 6), the time for challenging the action of filing two complete sets of nomination papers is too short for full litigation of objections to that procedure before the election occurs. As Stephens is currently a trustee, he may well run again for the same office, and if any other candidate decides to file two sets of nomination papers when there are two vacancies on the board, Stephens would find himself in the same situation presented in this case. We note that in the November 5, 1991, election, a candidate other than Lorenzo obtained two ballot spots, possibly because he, like Lorenzo, filed two complete sets of nomination papers. We find that the issues in this case are capable of repetition, yet evading review, and thus we address the issues on the merits.

This court must defer to the Electoral Board’s findings on disputed issues of fact, and such findings “will not be reversed or set aside unless they are against the manifest weight of the evidence.” (Williams v. Butler (1976), 35 Ill. App. 3d 532, 538, 341 N.E.2d 394.) In this case there are no disputed issues of fact and the legal result of these facts is solely a question of law. “ ‘[T]he scope of our review on questions of law is independent, not deferential.’ ” Serwinski v. Board of Election Commissioners (1987), 156 Ill. App. 3d 257, 261, 509 N.E.2d 509, quoting Havens v. Miller (1981), 102 Ill. App. 3d 558, 567, 429 N.E.2d 1292.

Stephens argues that Lorenzo’s second set of nomination papers was void because it was filed in violation of section 10 — 4 of the Election Code, which provides that “[a] petition [for nomination], when presented or filed, shall not be *** added to.” (Ill. Rev. Stat. 1991, ch. 46, par. 10 — 4.) Article 10 of the Election Code applies only to minor political parties and independent candidates. (Ill. Rev. Stat. 1991, ch. 46, par. 10 — 1.) Article 7 of the Election Code, which applies to political parties which received too large a percentage of the vote to qualify as minor parties, contains a section parallel to section 10 — 4. Section 7 — 10 provides:

“The [nominating] petitions, when filed, shall not be withdrawn or added to, and no signatures shall be revoked except by revocation filed in writing with the *** official with whom the petition is required to be filed ***.” (Ill. Rev. Stat. 1991, ch. 46, par. 7 — 10.)

Section 10 — 4 states:

“A [nominating] petition, when presented or filed, shall not be withdrawn, altered, or added to, and no signature shall be revoked except by revocation in writing presented or filed with the officers or officer with whom the petition is required to be presented or filed ***.” Ill. Rev. Stat. 1991, ch. 46, par. 10 — 4.

Since section 10 — 4 of the Election Code contains language nearly identical to the language of section 7 — 10 of the same statute, we construe the sections to have similar meaning. See Mirabella v. Retirement Board of County Employees’ Annuity & Benefit Fund (1990), 198 Ill. App. 3d 971, 974, 556 N.E.2d 686.

In Anthony v. Butler (1988), 166 Ill. App. 3d 575, 580, 519 N.E.2d 1193, the appellate court held:

“[S]ection 7 — 10 does not permit a candidate to file multiple sets of nomination papers for the same office. To so construe the statute would render meaningless the provision’s express terms that petitions ‘shall not be withdrawn or added to.’ ” (166 Ill. App. 3d at 580, quoting Ill. Rev. Stat. 1985, ch. 46, par. 7 — 10.)

Following Anthony, we hold that section 10 — 4 prohibits candidates from filing multiple sets of nomination papers for a single office.

The Electoral Board argues that section 10 — 4 does not apply here because Lorenzo filed his two sets of nomination papers for two distinct offices as trustee. The Electoral Board contends that section 10 — 7 of the Election Code permitted Lorenzo’s multiple filings, as that section provides:

“If the name of the same person has been presented as a candidate for 2 or more offices which are incompatible so that the same person could not serve in more than one of such offices if elected, that person must withdraw as a candidate for all but one of such offices within the 5 business days following the last day for petition filing.” Ill. Rev. Stat. 1991, ch. 46, par. 10 — 7.

We agree with the Electoral Board that this section implicitly permits a candidate to file two complete sets of nomination papers for two incompatible offices. The question, then, is whether the two positions on the Board of Trustees are “incompatible” offices within the meaning of section 10 — 7 of the Election Code.

“ ‘Incompatibility *** is present when the written law of a state specifically prohibits the occupant of either one of the offices in question from holding the other and, also, where the duties of either office are such that the holder of the office cannot in every instance, properly and fully, faithfully perform all the duties of the other office. ***’ [People ex rel. Myers v. Haas (1908), 145 Ill. App. 283, 286-87.]
* * *
‘Incompatibility of offices exists where there is a conflict in the duties of the offices, so that the performance of the duties of the one interferes with the performance of the duties of the other. They are generally considered incompatible where such duties and functions are inherently inconsistent and repugnant, so that because of the contrariety and antagonism which would result from the attempt of one person to discharge faithfully, impartially, and efficiently the duties of both offices, considerations of public policy render it improper for an incumbent to retain both.’ [63 Am. Jur. 2d Public Officers and Employees sec. 73 (1972).]
* * *
‘One of the most important tests as to whether offices are incompatible is found in the principle that the incompatibility is recognized whenever one is subordinate to the other in some of its important and principal duties, and subject in some degree to the other’s revisory power.’ 63 Am. Jur. 2d Public Officers and Employees sec. 74 (1972).” Rogers v. Village of Tinley Park (1983), 116 Ill. App. 3d 437, 440-41, 451 N.E.2d 1324.

The two trustee positions present no such incompatibility: the duties of either office do not preclude its holder from “properly and fully, faithfully” performing the duties of the other; the functions of the two offices are not “inherently inconsistent and repugnant”; neither office is “subordinate to the other in some of its important and principal duties.” These two offices are one and the same, both having the same official functions, and therefore, their duties cannot clash. Since the two offices for which Lorenzo applied are not incompatible, we hold that section 10 — 7 of the Election Code does not apply to this case.

Because we find that section 10 — 7 does not apply here, we need not address Stephens’ argument that section 10 — 7 can never apply to validate multiple filings for nonpartisan elections.

Since the two offices of trustee are not incompatible, Lorenzo’s filing of a second set of nomination papers for a position as trustee constituted an attempt to add to the nomination papers previously filed, in violation of section 10 — 4 of the Election Code. In this case, as in Anthony, the Electoral Board should have disregarded the second set of nomination papers as surplusage. Anthony, 166 Ill. App. 3d at 581-82.

The Electoral Board argues that this court must interpret the statute to favor Lorenzo’s eligibility based on Velazquez v. Soliz (1986), 141 Ill. App. 3d 1024, 490 N.E.2d 1346. Since this court finds Lorenzo’s second set of nomination papers void as surplusage, Lorenzo was ineligible because he voluntarily withdrew his first set of nomination papers, which was his only valid set of nomination papers. However, the Election Code specifically permits withdrawal from candidacy, although such withdrawal renders the candidate ineligible. (Ill. Rev. Stat. 1991, ch. 46, par. 10 — 7.) Lorenzo’s voluntary withdrawal cannot serve to validate nomination papers which were void when filed.

Neither can this court’s interpretation of section 10 — 4 unfairly surprise Lorenzo so as to violate his right to procedural due process. (See Anderson v. Schneider (1977), 67 Ill. 2d 165, 177, 365 N.E.2d 900.) The language of the Election Code itself gave Lorenzo reason to believe the courts would construe the statute to prohibit multiple filings, and this court’s decision in Anthony provided further notice of the meaning of the statute.

We hold that the Electoral Board and the trial court misconstrued the Election Code when they found that the Code permitted a candidate to file two complete sets of nomination papers for two positions on the Board of Trustees, where the two positions had identical duties and functions, and both positions were to be filled at a single election by the two candidates on the ballot who received the highest and second highest vote totals. We reverse the Electoral Board’s decision dismissing Stephens’ objections to Lorenzo’s second set of nomination papers.

Reversed.

HARTMAN, P.J., and DiVITO, J., concur.


text:
      In re APPLICATION OF EDWARD J. ROSEWELL, as County Treasurer and ex officio County Collector of Cook County, for Judgment and Order of Sale Against Real Estate Returned Delinquent for the Nonpayment of General Taxes for the Year 1979 and for Judgment Fixing the Correct Amount of Any Tax Paid Under Protest for the Year 1979 (R.D. Werner Company, Indiv. and on Behalf of a Class of Objectors Similarly Situated, Objector-Appellant, v. Edward J. Rosewell, Treasurer and ex officio County Collector of Cook County, Applicant-Appellee (Leyden Fire Protection District, Respondent-Appellee)).
    First District (2nd Division)
    No. 1—89—2480
    Opinion filed September 29, 1992.

      Kevin M. Forde, Ltd., of Chicago (Kevin M. Forde and Katrina Veerhusen, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Joan S. Cherry and Mark R. Davis, Assistant State’s Attorneys, of counsel), for appellees.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Ruth M. Moscovitch and L. Anita Richardson, Assistant Corporation Counsel, of counsel), for amicus curiae.

   JUSTICE McCORMICK

delivered the opinion of the court:

In this case, we review the trial court’s decision denying certification of a class in a tax objection case. The objector’s claims relate to taxes levied by a fire protection district on property not located within that district. The trial court held that taxpayers who paid their taxes under protest and whose objection to the collector’s application for judgment was filed by a class representative were not sufficiently numerous for their objection to proceed as a class action. The trial court also held that taxpayers who did not pay under protest waived their right to a tax refund and were not certifiable as a class.

We are specifically called upon to decide whether a class action is permissible in a tax objection case, and if so, whether the facts and circumstances of this case fall within the statutory requirements.

It is our view that the trial court correctly decided the issues in this case. A class action is permissible in a tax objection case provided that the members of the class pay their taxes under protest and a representative of the class appears and objects to the collector’s application for judgment.

The Leyden Fire Protection District (the District) is a taxing body organized in 1949 pursuant to statutory laws to provide fire protection services within prescribed boundaries. In 1965 the legislature amended “An Act to legalize the organization of certain fire protection districts” to provide for the automatic disconnection from a fire protection district of property annexed to a municipality providing fire protection service. (Ill. Rev. Stat. 1965, ch. 1271/2, par. 45.4.) Certain properties included within the original boundaries of the District have been annexed to various municipalities that provide fire protection service. These properties were subject to the automatic disconnection provisions of the Act. The Cook County clerk continued to extend the District’s tax levy against all of the property within its original boundaries, including the disconnected properties.

Edward J. Rosewell, treasurer and ex officio county collector of Cook County, filed an application for judgment and order of sale for delinquent taxes for the tax year 1979. R.D. Werner Company (Werner) filed an objection on its own behalf and on behalf of all other property owners whom the District continued to tax after their properties were disconnected from the District. The trial court sustained Werner’s objection as to four parcels owned by Werner, but denied Werner’s motion for class certification. Werner appeals the denial of relief to the members of its putative class. The District does not challenge the applicability of the automatic disconnection provisions to the properties involved in this action. The City of Chicago filed an amicus curiae brief in support of the position taken by the collector.

There are three categories of taxpayers that concern us: (1) Werner, a taxpayer who paid taxes to the District under protest and individually appeared and filed an objection to the collector’s application for judgment; (2) taxpayers who paid taxes under protest on property disconnected from the District; and (3) taxpayers who paid taxes without protest on property disconnected from the District.

Werner contends that all of these taxpayers are entitled to a refund of the disputed taxes as members of the class Werner represents.

The collector contends that (1) the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 482 et seq.) specifies the only means in which taxpayers can obtain relief from excessive or illegal taxes; (2) a class action is an equitable remedy which is not available where the taxpayers’ legal remedy is adequate; and (3) to allow a class action in an objection to a tax assessment is against public policy.

Specifically looking at the Revenue Act and the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, pars. 57.2 through 57.7), we find no language directly indicating whether taxpayers seeking refunds can form a class. Without citation to authority, the collector argues that because the Revenue Act contains no provisions for class action, taxpayers cannot bring such an action. We disagree. Since the Revenue Act does not expressly exempt tax objection proceedings from class actions, we will not read into the statute such an exemption. “[W]here the Revenue Act is silent, *** the Civil Practice Act and rules of court apply.” People ex rel. Southfield Apartment Co. v. Jarecki (1951), 408 Ill. 266, 274, 96 N.E.2d 569.

The collector’s “adequate legal remedy” argument is based on the view that class actions are creatures of equity law and are not available if an adequate legal remedy exists. This argument ignores the fact that class actions are now creatures of statutory law. (Ill. Rev. Stat. 1979, ch. 110, par. 57.2, now Ill. Rev. Stat. 1991, ch. 110, par. 2 — 801.) “A class action may now be brought in any court and is not limited to an action in equity ***.” Gutansky v. Advance Mortgage Corp. (1981), 102 Ill. App. 3d 496, 499, 430 N.E.2d 122.

We now turn to the argument that a class action in tax objection cases is against public policy. The collector claims that allowing class actions in tax cases would create a fiscal debacle causing taxing bodies to become bankrupt.

A class action suit merely eases the difficulty of asserting and perfecting legitimate claims. Taxpayers who have legitimate claims should have the total resources of our legal system available to them. Where there is a need to limit recourse to these resources, the legislature should act. It does not follow that taxing bodies will become bankrupt if class actions are allowed in objection to tax assessments. The collector fails to state a reason or cite authority that supports his dire prediction. This court cannot engage in public policy considerations unless there is an issue not addressed by the common law or falling within a statutory gap, or when applying constitutional precepts to changing and novel circumstances. No such issue exists in the case at bar. Our legal system is resilient and is replete with checks and balances: frivolous claims are discouraged and subject to sanctions; the legislature has specified the elements necessary for class certification; and the exercise of sound judicial discretion minimizes absurd and harmful results. Subject to the limitations that we will discuss later, class actions are permitted in tax objection cases.

Werner maintains that the putative class members are not required to make payment under protest to preserve their objections because the property was “not subject to taxation” by the District. The Revenue Act of 1939 outlines procedures to be followed if a taxpayer wishes to dispute the amount of real estate taxes paid to a taxing body and seek a refund. These procedures are contained in section 194 of the Act. (Ill. Rev. Stat. 1979, ch. 120, par. 675.) The requirements are essentially (1) the tax must be paid in full and under protest; and (2) the taxpayer must appear and file an objection in the circuit court at the time the collector makes application for a judgment. Prior to a 1986 amendment, section 194 of the Revenue Act excluded certain property from the requirement to pay under protest and file an objection in order to perfect the right to a refund:

“If any person desires to object pursuant to Section 235 of this Act to all or any part of a real property tax for any year, for any reason other than that the real estate is not subject to taxation, he shall pay ***.” Ill. Rev. Stat. 1979, ch. 120, par. 675.

This court construed the language “real estate *** not subject to taxation” in Illinois Institute of Technology v. Rosewell (1985), 137 Ill. App. 3d 222, 484 N.E.2d 837. There, we recognized that a plaintiff could elect not to proceed under sections 194 and 235 of the Revenue Act (Ill. Rev. Stat. 1989, ch. 120, pars. 675, 716), and pursue equitable remedies for the refund of excessive taxes illegally collected on exempt property. Quoting the “not subject to taxation” language, we stated that when a tax is levied on exempt property, the taxpayer need not pay under protest and file an objection before seeking equitable relief. Where the property is exempt from taxation, the taxpayer is not barred from a refund by the voluntary payment doctrine. As our supreme court has stated:

“[T]he owner of land which is not subject to any taxation at all is not required to pay any amount under protest in order to object to a tax.” People ex rel. Fisher v. Baltimore & Ohio R.R. Co. (1945), 390 Ill. 389, 392-93, 61 N.E.2d 382, 384.

Werner relies on the Fisher case to argue that property outside of the geographic boundary of a taxing district is subject to a proper objection without payment under protest. The objector in the Fisher case successfully obtained a judgment voiding an assessment without prior payment and protest. In that case, our supreme court held that a drainage district created by a voluntary association lacked jurisdiction to tax a railroad that was not a signatory to the agreement forming the association. Thus, the railroad was not subject to any drainage tax at all.

Werner and all taxpayers it seeks to represent, on the other hand, are liable for taxes to pay for their fire protection. They have paid such taxes to the municipalities which annexed their properties as well as the District. Fisher is not a case of double taxation by two legitimate taxing authorities. Fisher is not a case where the taxing body could extend its levy to the property or the tax is unquestionably owed to some authority. (See, e.g., Belt Ry. Co. v. Hynes (1987), 157 Ill. App. 3d 697, 511 N.E.2d 659.) Similarly, Werner’s citation to Peo ple ex rel. Hargrave v. Phillips (1946), 394 Ill. 119, 67 N.E.2d 281, is unpersuasive. Phillips is a double taxation case where a single taxing authority collected a tax on the land and a tax on the unaccrued gas and oil rents from the same land. The court held that the unaccrued rents could not be separately taxed because they were part of the land. Compliance with sections 194 and 235 was not required because the unaccrued rents were not subject to any tax at all.

In a prior appeal of a separate case arising from the same objection to the tax and year of issue in this case, R.D. Werner Co. v. Leyden Fire Protection District (1980), 91 Ill. App. 3d 587, 414 N.E.2d 1169, we determined that the District and the collector had the power to impose and collect fire protection taxes, but improperly extended them to the disconnected property. The disconnection of the property from the District did not remove the power to impose and collect fire protection taxes. The taxpayer’s property did not fall into the category of “real estate not subject to taxation” within the meaning of section 194 of the Revenue Act. (Ill. Rev. Stat. 1979, ch. 120, par. 675.) Therefore, the taxpayers are not excused from the statute’s requirements that they pay under protest and file objections in order to perfect their rights to a refund or their rights to object to the collector’s application for judgment.

Werner argues, alternatively, that all members of the putative class effectively protested the tax in accord with a court order entered in the prior case arising from the same objection. In the prior case, Werner sought to enjoin the collector from collecting real estate taxes on the disconnected property. On June 20, 1980, the trial court issued a modified final order as part of an injunction it had previously issued. The modified order permitted the collector to collect the taxes and deemed the taxes so paid as having been paid under protest. (Werner, 91 Ill. App. 3d at 591.) The modified order stating that payment would be construed as payment under protest was in effect at the time some of the 1979 real estate taxes were paid "without protest to the collector.

In the prior appeal, we held that the “action was not a proper one for injunctive relief” (Werner, 91 Ill. App. 3d at 594), and therefore, the trial court did not have jurisdiction in equity (Werner, 91 Ill. App. 3d at 591). Accordingly, we reversed the trial court’s orders. In effect, we found that the trial court did not have jurisdiction to grant the relief provided by its order. Werner, 91 Ill. App. 3d at 594.

“Jurisdiction in a particular case is not only the power of the court to hear and determine it, but also the power to render the particular judgment entered, and every act of the court beyond its jurisdiction is void.” (Thayer v. Village of Downers Grove (1938), 369 Ill. 334, 339, 16 N.E.2d 717.)

Therefore, the trial court’s modified final order granting injunctive relief was void and of no legal effect when it was entered. In this case, as in Thayer, the fact that the court issuing the order had jurisdiction over the subject matter and the parties does not save the order from being void. (See Thayer, 369 Ill. 334, 16 N.E.2d 717.) As we noted in the prior appeal, “even though the result may appear somewhat harsh, the taxpayer may lose his right to a tax refund by failing to comply with the statutory provisions. Injunctive relief, available in the limited circumstances discussed, is therefore pursued at the taxpayer’s risk.” Werner, 91 Ill. App. 3d at 594.

Since the grant of equitable relief was beyond the jurisdiction of the trial court, the order was void and the provision that payment of the tax would be deemed payment under protest is of no legal effect. The taxpayers who failed to pay under protest as prescribed by the Revenue Act cannot rely on the void order to establish payment under protest.

As its last argument on the question of compliance with the statutory requirements, Werner argues that the taxpayers sufficiently complied with the statute when they paid taxes and a class representative protested and filed an objection. Werner argues that in other contexts, class actions are permitted where only the representative member of the class is in compliance with the statutory requirements.

The cases cited by Werner for the proposition that only the “class representative” needed to satisfy the requirements of the Revenue Act are all Federal cases. They have nothing to do with tax objections. These cases do not involve special statutory actions which limit the jurisdiction of the courts. They do not involve statutes that separately regulate procedure in any way comparable to sections 194 and 235 of the Revenue Act. See, e.g., Albemarle Paper Co. v. Moody (1975), 422 U.S. 405, 414, 45 L. Ed. 2d 280, 294, 95 S. Ct. 2362, 2370 (statute, interpreted in light of legislative history, allowed back pay to unnamed class members who filed no charges with the Equal Employment Opportunity Commission).

The payment under protest requirement has been held to be a mandatory requirement of the statutory objection procedure. Any taxpayers who do not pay taxes under protest are prohibited from objecting to a tax assessment. (In re Application of Rosewell (1979), 78 Ill. App. 3d 769, 397 N.E.2d 232.) The reason for the protest procedure is to allow for rational planning of revenue matters. The protest is deemed the best evidence that the taxes were not voluntarily paid and that the payment is potentially refundable.

In Gasick v. O’Connor (1990), 201 Ill. App. 3d 1013, 559 N.E.2d 574, plaintiff filed a tax objection for himself and all others similarly situated, seeking a refund of the taxes paid on property in an area which a library district sought to annex by a library district. Gasick paid his taxes under protest on the grounds that the library district should not have been extended to his property. All other taxpayers paid their taxes without protest. The trial court denied class certification and this court affirmed. We held that those taxpayers who paid taxes without protest had no legal right to a refund of taxes. Gasick, 201 Ill. App. 3d at 1016.

Taxpayers who have not paid under protest are not in compliance with the statutory provisions of the Revenue Act. The fact that a representative of their putative class has paid taxes under protest does not bestow compliance upon the class of taxpayers who have not paid under protest. Without the individual payment of taxes under protest, the taxpayer is unable to proceed with an objection in a tax assessment case individually or as a member of a class. Therefore, we hold that the trial court correctly found that taxpayers who failed to file protests in the manner prescribed in the Revenue Act cannot participate as class members in Werner’s objection to the collector’s application for judgment with respect to the District’s 1979 taxes.

Werner contends that the trial court abused its discretion by failing to certify the taxpayers who paid under protest as a class. The trial court found that the number of taxpayers in this category was between 35 and 40. Based on its findings, the trial court concluded that joinder was not impractical. This ruling is not an abuse of discretion.

Section 2 — 801 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 801) provides in part:

“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:(l)
The class is so numerous that joinder of all members is impracticable.”

The burden is on the party seeking to establish the class to show that the numerosity requirement is met. (DeMarco v. Edens (2d Cir. 1968), 390 F.2d 836, 845.) There are relatively few Hlinois cases involving the numerosity requirement, but Illinois courts construing the statute may follow Federal practice under Rule 23(a)(1) (Fed. R. Civ. P. 23(a)(1)), due to the similarity in language. (See Forde, State Practice: Illinois Class Action Statute, in Class Actions ch. 7, §7.6 (Ill. Inst. for Cont. Legal Educ. (1986).) In general, the question of numerosity depends on the particular facts of each case and no arbitrary rules regarding the size of class have been established by the courts. Tenants Associated for a Better Spaulding (TABS) v. United States Department of Housing & Urban Development (HUD) (N.D. Ill. 1983), 97 F.R.D. 726, 729.

In reliance upon Garcia v. Gloor (5th Cir. 1980), 618 F.2d 264, and Dolgow v. Anderson (E.D.N.Y. 1968), 43 F.R.D. 472, the trial court considered (1) the location of the putative class members in a compact geographic area, (2) the ready ascertainability of their names, and (3) the ability of the individuals to bring their own claims. In the case before us, the trial court concluded that joinder of the potential members of the class was practical because of the inherent ease of identifying the affected taxpayers, the compactness of the geographical location and the large dollar amount of the claims. The record does not reflect with any degree of precision the dollar amounts of the 35 to 40 claims. Admittedly, the amounts of the respective claims have some bearing on the availability of legal counsel willing to pursue them. Assume for the purpose of our analysis that these claims are relatively small and inconsequential. This factor alone is not of such magnitude that it negates the court’s discretion and requires the certification of the class. The amounts of the claims are but one factor among many that the trial court must weigh. There is no preordained conclusion that the court must reach. Absent any statutory or case law requiring a certain result, the court is to exercise its discretion. Our search is not to determine whether we agree or disagree with the trial court. We find no law that compels a decision contrary to that made by the trial court. The trial court was well within the proper exercise of its discretion in finding that the potential class of taxpayers was not so numerous that joinder of all its members was impractical.

In summary, we hold that class actions are permitted in tax objection cases, that the respective members of the class must have paid the disputed taxes under protest, that the members of the class or a class representative must appear in the collector’s application for judgment and file an objection, and that the trial court properly exercised its discretion by finding that the taxpayers who paid under protest were not sufficiently numerous for their objections to proceed as a class action.

Werner raised a number of other contentions in this appeal: that there are questions of fact or law common to the class which predominate over questions affecting only individual members; that the representative party will fairly and adequately represent the interest of the class; and that the class action is an appropriate method for the fair and efficient adjudication of the controversy. Since the trial court did not directly address these contentions and the trial court correctly denied class certification, we deem it proper to exclude consideration of these contentions in this appeal.

Therefore, the judgment of the circuit court is affirmed.

Affirmed.

SCARIANO and DiVITO, JJ., concur.