author: JUSTICE BUCKLEY

text:
    RICHARD ZIENTARA, Plaintiff-Appellee, v. THE LOTTERY CONTROL BOARD, Defendant-Appellant.
    First District (1st Division)
    No. 1—89—2474
    Opinion filed June 3, 1991.

      Roland Burris, Attorney General, of Springfield (Robert Ruiz, Solicitor General, and Robert G. Toews, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Beermann, Swerdlove, Woloshin & Barezky, of Chicago (Alvin R. Becker and Howard A. London, of counsel), for appellee.
   JUSTICE BUCKLEY

delivered the opinion of the court:

The Illinois Lottery Control Board (the Board) appeals from an order of the circuit court of Cook County on administrative review which reversed its decision to deny Richard Zientara (plaintiff) accrued interest as a result of a delay in payment on the first installment of a winning Lotto ticket. The Board contends that (1) the circuit court lacked subject-matter jurisdiction over the matter because plaintiff failed to name and serve summons upon Sharon Sharp, the Director of the Department of the Lottery (the Director); (2) no statutory authority exists to permit an award of interest on the lottery winnings; and (3) any payment of interest would violate the doctrine of sovereign immunity.

Following the announcement of the April 7, 1984, Illinois Lotto prize of $1,696,800, plaintiff, an Indiana resident, commenced litigation in the Porter Superior Court of Indiana against Chester and Bernice Kaszuba, the individuals in possession of the winning ticket. During the course of the Indiana proceedings, the Department of the Lottery (the Department) retained possession of the $84,844 first installment payment on the winning ticket, despite an order from the Indiana Superior Court directing the “State of Illinois Lottery Division” to pay the proceeds to the clerk of its court. Great-West Life Assurance Company, the company contracting with the Illinois Lottery Commission (the Commission) to make installments subsequent to the Department’s payment of the initial installment, paid the second and third past-due installments without interest into the registry of the clerk of the Indiana Court, whereupon the Indiana Court absolved it from any further liability. At the culmination of the litigation in the Indiana Supreme Court on April 6, 1987, plaintiff was declared the rightful owner of the proceeds.

Plaintiff thereafter made a claim to the Department for the first installment of the Lotto prize. The Department notified plaintiff’s attorney by letter that it would not process the lottery payment until registration of the Indiana judgment in Illinois and until receipt of an order dismissing an action which had been filed by the Kaszubas in the circuit court of Cook County. The letter further indicated that no interest would be paid on the installment. The Department paid plaintiff the first lottery installment after the Kaszuba action was dismissed and the Indiana judgment was registered in Cook County.

In response to plaintiff’s requests for interest on the principal sum of the first installment, the General Counsel for the Department informed plaintiff in another letter, dated August 17, 1987, that he was not entitled to interest. Plaintiff then filed a complaint for administrative review of “a decision of the Illinois Lottery Control Board of August 17, 1987,” in the circuit court of Cook County, naming as defendant, and serving summons upon, the Board. The circuit court entered an order retaining jurisdiction over the matter but remanding the case to the Board for a formal administrative hearing.

A Department hearing officer, following an administrative hearing, recommended that plaintiff’s request for interest be denied. Plaintiff pursued an appeal to the Board, and the Board recommended that the Director adopt the hearing officer’s decision. On October 25, 1988, the Director adopted the decision of the hearing officer and the Board.

Plaintiff filed an amended complaint for administrative review in the circuit court on November 10, 1988, naming only the Board as defendant. The complaint stated that “[o]n October 25, 1988, the Director of the State of Illinois, Department of the Lottery, entered her final administrative decision denying the claim of plaintiff” and requested that the “order and decision of the Illinois Lottery Control Board be reversed and that an order be entered directing an award of interest to be paid to [pjlaintiff to compensate him for delay in payment from April 7,1984, to August 27,1987.”

The circuit court entered an order on February 10, 1989, reversing the decision of the Board as contrary to the law and remanding the case to the Board to award plaintiff interest on the $84,844 installment from the date the Kaszubas first asserted their claim to the winnings until August 27, 1987. The court retained jurisdiction and also found no just reason to delay enforcement of the appeal under Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). The appellate court dismissed the Board’s appeal on the ground that the circuit court’s order was not a final and appealable order.

Pursuant to the circuit court’s February 10, 1989, order, a hearing was held before the Board. On May 19, 1989, the Board issued a recommended decision that $21,890.17 represented the earnings on the installment from the date of the claim on April 9, 1984, until August 27,1987. The Director issued her decision on June 30, 1989, stating:

“Although I believe the findings of the Lottery Control Board to be incorrect, to comply with the Circuit Court’s Order of February 10, 1989, I am attaching the Lottery Control Board’s findings to this decision so as to provide the requisite finality in this matter for purposes of appeal.”

Plaintiff subsequently moved for the entry of the $21,890.17 judgment in the circuit court, naming “the Department of the Lottery” as defendant. On August 11, 1989, the circuit court entered an order confirming the Board’s decision of May 19, 1989, adopted by the Director on June 30, 1989, and ordering the Department to pay plaintiff $21,890.17.

Thereafter, “[defendant SHARON SHARP, Director of the Illinois Department of Lottery, move[d] [the circuit] court for clarification” of its August 11, 1989, order. The motion asserted that the circuit court had actually reversed the Director’s decision and adopted the Board’s decision. On August 25, 1989, the court entered an order, under the caption “Zientara v. Sharon Sharp, Director, Illinois State Lottery,” reversing the decision of the Director as follows:

“[T]his court, being fully advised in the premises, orders that the decision of Sharon Sharp, defendant, is reversed because it is against the manifest weight of the evidence. Judgment is entered against defendant directing payment to plaintiff in the amount of $21,890.17.”

Initially, this court is compelled to admonish the Commission for its bad faith. “Many people, who may not otherwise spend their hard-earned money, trust that a State-run lottery will be fair. The State should be beyond reproach in something like this because it is important for people to have faith in their government.” (Smith v. Jones (1986), 113 Ill. 2d 126, 136, 497 N.E.2d 738, 742 (Clark, J., dissenting, joined by Simon, J.).) Although under Illinois case and statutory law we find that the Commission prevails, this protracted litigation could have been avoided by the Commission through the performance of one simple act. Had the Commission deposited the first installment payment with the clerk of the court registry in Indiana as the July 17, 1985, order of the Porter County Superior Court authorized or, in the alternative, filed an interpleader action in the circuit court of Cook County, depositing the disputed installment with the court, this litigation would have been unnecessary.

On appeal, the Board contends that the circuit court never acquired its special statutory jurisdiction on administrative review of plaintiff’s action because plaintiff failed to meet the procedural requirements of the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3—101 et seq.) by omitting to name the Director as a defendant and to serve summons upon her. Specifically, the Board asserts that plaintiff, by his omission, failed to comply with section 3—107 of the Administrative Review Law, which provides:

“In any action to review any final decision of an administrative agency, the administrative agency and all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency shall be made defendants.” (Ill. Rev. Stat. 1987, ch. 110, par. 3—107.)

Plaintiff responds that he satisfied section 3—107 by naming the Board as the sole defendant because the Director was not a necessary defendant since she reviewed the Board’s determination as supervisor of the independent Board, rather than a “part[y] of record to the proceedings before the administrative agency.”

We preliminarily note that plaintiff improperly focuses on whether the Director is a “part[y] of record” to the administrative proceedings instead of whether she is the “administrative agency” required to be made a defendant under section 3—107. Section 3—101 of the Administrative Review Law defines “Administrative Agency” as “a person, body of persons, group, officer, board, bureau, commission or department *** of the State *** having power under law to make administrative decisions.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 110, par. 3—101.) Inasmuch as the Director entered a decision in the administrative proceedings, in issue here is whether she is the “administrative agency” contemplated in section 3—107. In contrast, the case relied on by plaintiff as analogous to the situation at hand, Lockett v. Chicago Police Board (1990), 133 Ill. 2d 349, 549 N.E.2d 1266, involved the question of whether the Chicago police superintendent who filed the charges against the officer was a party to the administrative proceeding from which the police board rendered the final administrative decision.

To further aid its definition of “administrative agency” in section 3—101, the Administrative Review Law defines “administrative decision” as “any decision, order or determination of any administrative agency rendered in a particular case which affects the legal rights, duties of parties and which terminates the proceedings before the administrative agency.” (Ill. Rev. Stat. 1987, ch. 110, par. 3—101.) Our supreme court, in Cuny v. Annunzio (1952), 411 Ill. 613, 616-17, 104 N.E.2d 780, 782, has interpreted identical provisions under the Administrative Review Act (Ill. Rev. Stat. 1945, ch. 110, pars. 264, 271) to mean that it is the final decision maker who acts as the administrative agency when entering the administrative decision and who is the “administrative agency” required to be made a defendant.

The appellants in Cuny named only the Director of Labor of the State of Illinois in seeking “review of a decision of the Board of Review and said Director of Labor” on a claim for unemployment compensation. The court, after noting that the relevant statutory provision provides that it is the decision of the Board of Review which terminates the proceedings within the Department of Labor and from which review lies to the circuit court, concluded: “[W]hile the Board of Review may be a division or arm of the Department of Labor ***, it is the Board which acted as the administrative agency and entered the administrative decision, and is the party contemplated by *** the Administrative Review Act.” Cuny, 411 Ill. at 616-17, 104 N.E.2d at 782.

Turning to the pertinent statutory provisions at issue in the case at bar, plaintiff asserts that, under the Illinois Lottery Law (the Act) (Ill. Rev. Stat. 1987, ch. 120, par. 1151 et seq.), only the Board has the authority to conduct hearings and the Director acts merely in a supervisory capacity in reviewing the Board’s decision. Section 4 established the Department of the Lottery to “implement and regulate the State Lottery in the manner provided in [the] Act.” (Ill. Rev. Stat. 1987, ch. 120, par. 1154.) Section 6 “created an independent board to be known as the Lottery Control Board” (Ill. Rev. Stat. 1987, ch. 120, par. 1156), and section 5 provides that “[t]he Department of the Lottery shall be under the supervision and direction of a Director of the Lottery” (Ill. Rev. Stat. 1987, ch. 120, par. 1155). The Act further provides that the Director “shall direct and supervise all its administrative and technical activities” and that “[t]he Board shall conduct hearings upon complaints charging violations of this Act or of regulations thereunder.” Ill. Rev. Stat. 1987, ch. 120, pars. 1157.3, 1159.

While plaintiff has correctly construed the statutory authority granted by these provisions, the Board points out that he has ignored the effect of the Department’s rules pertaining to its administrative decision-making process. The Department rules, the Board asserts, establish that Director Sharp, in her official capacity as Director of the Department, is the final decision maker in the administrative process within the Department.

The legislative provision granting the Board authority to conduct hearings, section 7.3 of the Act, expressly indicates that the authority would be exercised in conjunction with the Department rules. (Ill. Rev. Stat. 1987, ch. 120, par. 1157.3.) Another provision in the Act also provides that “[t]he Department shall promulgate such rules and regulations governing the establishment and operation of a State lottery as it deems necessary to carry out the purposes of this Act.” Ill. Rev. Stat. 1987, ch. 120, par. 1157.1.

The Department rules establish an appeal process to be applied “to all hearings, except rulemaking hearings, conducted by the Department, *** the Board, or any hearing officer appointed by the Director, under the authority of Section 7.3.” (11 Ill. Adm. Code §1700.10(a).) Three stages comprise the appeal process: a hearing before a hearing officer appointed by the director, a review of the record before the Board, and a final appeal to the Director. (11 Ill. Adm. Code §§1700.10(b) through (e) (Supp. 1988).) In reviewing the record of the case, the Board “make[s] recommendations to the Director,” from which a party may make “a final appeal to the Director” by noting “exceptions to the recommendations of the Board.” (11 Ill. Adm. Code §§1700.10 (d), (e) (Supp. 1988).) Finally, “[a]ny party adversely affected by a final decision or order of the Director may obtain judicial review as provided by the Administrative Review Law.” 11 Ill. Adm. Code §1700.10(f) (Supp. 1988).

The unequivocal mandate of the above Department rules is that it is the decision of the Director which is the final administrative decision reviewable under the Administrative Review Law and which terminates the proceedings within the Department; the Board only makes recommendations to the Director. Because the Illinois Lottery Law expressly provides for the enactment of such rules and because administrative rules have the force and effect of law (see Northern Illinois Automobile Wreckers & Rebuilders Association v. Dixon (1979), 75 Ill. 2d 53, 58, 387 N.E.2d 320, 323), the rules are dispositive of the question of whether the Director, in her official capacity as Director of the Department, is the final decision maker in the administrative process within the Department.

Plaintiff’s reliance on Hadley v. Board of Trustees of Firemen's Pension Fund (1983), 113 Ill. App. 3d 866, 447 N.E.2d 958, as supporting his conclusion that the Director is not a necessary party, is misplaced. In Hadley, the appellate court found that two members of the Board of Trustees of the Firemen’s Pension Fund of the City of Batavia, who dissented from a decision by the Board, did not have standing to seek judicial review under the Administrative Review Act (Ill. Rev. Stat. 1981, ch. 110, par. 271). The court held that the two members were not parties of record as members of the administrative agency, but acted as constituent members of the administrative agency. (Hadley, 113 Ill. App. 3d at 870-71, 447 N.E.2d at 962.) The Director, in contrast, is not a constituent component of the decision-making process of the Board; she is the final decision maker from whom administrative review must be sought.

Having determined that Director Sharp is a necessary defendant to this action, we consider now the effect of plaintiff’s failure to name Director Sharp as a defendant in his complaint for administrative review. Both parties, citing the supreme court decision in Lockett v. Chicago Police Board (1990), 133 Ill. 2d 349, 549 N.E.2d 1266, advise us that the failure to comply with section 3—107’s requirement of naming necessary defendants deprives the court of subject-matter jurisdiction.

It has generally been held that when a court’s jurisdiction is a special statutory jurisdiction, as that conferred upon the circuit court by the Administrative Review Law here, its jurisdiction is limited to the language of the act conferring it and cannot be acquired unless the mode of procedure prescribed by statute is strictly pursued. (Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill. 2d 202, 210, 486 N.E.2d 893, 896.) The Administrative Review Law’s requirement in section 3—103 that a complaint be filed within 35 days from the date of the administrative decision has repeatedly been found to be a jurisdictional requirement; section 3— 103’s 35-day time limit for the issuance of summons, on the other hand, has been held to be a mandatory requirement, noncompliance with which will not deprive the court of jurisdiction. (Ill. Rev. Stat. 1987, ch. 110, par. 3—103; City National Bank & Trust Co. v. Property Tax Appeal Board (1983), 97 Ill. 2d 378, 382, 454 N.E.2d 652, 654.) Failure to comply with the summons period, however, will result in dismissal unless a litigant shows a good-faith effort to issue summons within the 35-day period. City National Bank, 97 Ill. 2d at 382, 454 N.E.2d at 654-55; Cox v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 399, 403-04, 451 N.E.2d 842, 844.

The Illinois Supreme Court has long held that the requirement of naming all necessary defendants in a complaint for administrative review is “mandatory and specific, [admitting] of no modification.” (Winston v. Zoning Board of Appeals (1950), 407 Ill. 588, 595, 95 N.E.2d 864, 869; Cuny, 411 Ill. at 617, 104 N.E.2d at 782.) Although section 3 — 107 does not specify a time limit for naming all necessary defendants, it interrelates with section 3—103’s requirement to issue summons within 35 days and section 3—105’s requirement to serve summons on each of the defendants. Ill. Rev. Stat. 1987, ch. 110, pars. 3-103, 3-105, 3-107.

In Lockett, the supreme court addressed the question of whether the failure to join a necessary party and to issue summons within the 35-day period could be cured by amendment. The circuit court there had dismissed the appellee’s complaint after the expiration of the 35-day period and denied the appellee’s motion to amend the complaint to join the necessary defendant. The supreme court, after noting the jurisdictional/nonjurisdictional distinction between the 35-day time limit for filing a complaint and the 35-day time limit for issuance of summons, stated:

“In the present case, there is no dispute that the superintendent was not named as a defendant and that summons was not issued on him within the 35-day period. Appellee has not offered, and our review of the record fails to disclose, any evidence of a good-faith effort to comply with the requirements of the act. (See Ill. Rev. Stat. 1985, ch. 110, pars. 3—103, 3—105, 3—107.) Accordingly, we find that the complaint for administrative review was properly dismissed by the circuit court.
We are aware that the appellate court has held a failure to name and issue summons against necessary parties within the 35-day time limit can be cured by subsequent amendment. (See, e.g., Bradshaw v. Barnes (1986), 145 Ill. App. 3d 866; Dendor v. Board of Fire & Police Commissioners (1973), 11 Ill. App. 3d 582.) To the extent those cases conflict with our holding today, they are overruled.” (Lockett, 133 Ill. 2d at 355-56, 549 N.E.2d at 1269.)

Contrary to the parties’ averment here, the Lockett court did not indicate that a failure to name a necessary defendant as required under section 3—107 would deprive the court of jurisdiction and, in fact, had earlier cited Winston (407 Ill. at 595, 95 N.E.2d at 869) for the proposition that the requirement was “mandatory and specific, and admits of no modification.” (Lockett, 133 Ill. 2d at 354, 549 N.E.2d at 1268.) Our research has disclosed no supreme court decision which has found the requirement to be jurisdictional, and numerous appellate courts have viewed the requirement as nonjurisdictional (Massoud v. Board of Education of Valley View Community District No. 365—U (1981), 97 Ill. App. 3d 65, 422 N.E.2d 236; Norris v. City of Aurora (1978), 64 Ill. App. 3d 748, 381 N.E.2d 996; Dendor v. Board of Fire & Police Commissioners (1973), 11 Ill. App. 3d 582, 297 N.E.2d 316; Bradshaw v. Barnes (1986), 145 Ill. App. 3d 866, 496 N.E.2d 276; but see Lewis v. Trainor (1977), 51 Ill. App. 3d 180, 366 N.E.2d 579). We do not interpret Lockett, therefore, as holding that section 3—107 is a jurisdictional requirement.

The court’s above-cited discussion of the good-faith exception, which has been historically applied to the 35-day summons requirement, requires a further interpretation of its holding. At first glance, the court’s inclusion of the statutory citation of section 3—107 in its discussion of the good-faith exception appears to extend the exception to the mandatory requirement to name all necessary defendants. A different view of the court’s focus on the good-faith exception, however, may be gleaned from an examination of the procedural posture of the case. Unlike plaintiff’s failure here to join the necessary defendant before the circuit court’s final judgment in clear noncompliance with section 3—107, the appellee in Lockett had moved to amend the complaint after expiration of the 35-day summons period but before final judgment in an attempt to comply with section 3— 107’s literal requirement to name all necessary defendants. Thus, the appellee there was barred from amending the complaint, not because of noncompliance with section 3—107, but based upon the interrelationship between its requirement to name all necessary defendants and the 35-day time limit for issuance of summons on each defendant. It was necessary, therefore, for the court to focus on the good-faith summons exception to determine if the appellee had complied with the summons requirement.

The above notwithstanding, it is not necessary that we determine the correct interpretation of Lockett as to this issue because no evidence exists in the case at bar that plaintiff made any effort to either name the Director as a defendant or to serve summons on her.

Our interpretation of Lockett to mean that the requirements of naming all necessary defendants and serving summons on them within the 35-day period are not jurisdictional raises the further issue of whether the requirements may be deemed waived here by the Board’s failure to object in the circuit court to the omission of these requirements and by the Director’s interjection of herself into the circuit court proceedings when she filed a motion for clarification of the circuit court’s final judgment.

In Cuny (411 Ill. at 617, 104 N.E.2d at 782), the supreme court found there could be no waiver of the statutorily imposed mandatory duty to name all necessary defendants on the ground that a named defendant made no objection thereto and the necessary defendant failed to make an appearance at the administrative review. Our research has disclosed no cases finding any other circumstances to justify a waiver of this mandatory duty imposed upon the party seeking review; and, as previously stated, courts have emphasized that this mandatory requirement admits of no modification. Thus, we decline to find that Director Sharp’s interjection of herself into the proceedings waived the mandatory duty imposed upon plaintiff to name her as a defendant and to serve summons on her, especially since the interjection occurred subsequent to the circuit court’s ruling on the merits of the case.

Accordingly, the order of the circuit court of Cook County is reversed and the decision of the Director of the Department is reinstated.

Reversed.

MANNING, P.J., and CAMPBELL, J., concur.

       Effective January 1, 1989, the Act was amended to provide: “The Board shall designate Hearing Officers who shall conduct hearings upon complaints ***. The Board may hear appeals from the recommended decisions of its Hearing Officers ***.” Ill. Rev. Stat. 1989, ch. 120, par. 1157.3.

       The previous appellate court decisions to which the court refers had conflicted with the court’s strict application of the good-faith exception as the single exception to the mandatory summons requirement by applying provisions of the Civil Practice Act (see Ill. Rev. Stat. 1969, ch. 110, pars. 26, 46(1), 277; Ill. Rev. Stat. 1985, ch. 110, par. 1—108) to allow amendment to add necessary parties after expiration of the 35-day period. Bradshaw, 145 Ill. App. 3d 866, 496 N.E.2d 276; Dendor, 11 Ill. App. 3d 582, 297 N.E.2d 316; see also Massoud, 97 Ill. App. 3d 65, 422 N.E.2d 236; Norris, 64 Ill. App. 3d 748, 381 N.E.2d 996.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    LORRAINE A. PATINKIN, Plaintiff-Appellant, v. REGIONAL TRANSPORTATION AUTHORITY et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—90—1423
    Opinion filed June 3, 1991.

      B. John Mix, Jr., of Chicago, for appellant.
    William H. Farley, Jr., of Chicago Transit Authority, of Chicago (Anthony J. Ritrovato, of counsel), for appellee Chicago Transit Authority.
    Mayer, Brown & Platt, of Chicago (James E. Tancula, Susan Kozik Jones, and Jori S. Kessler, of counsel), for appellee Regional Transportation Authority.
   JUSTICE O’CONNOR

delivered the opinion of the court:

In this appeal we consider whether the notice of an intention to file suit against the Regional Transportation Authority (RTA) satisfies the statutory precondition of notice of suit necessary to maintain an action against the Chicago Transportation Authority (CTA).

On August 10, 1988, Lorraine A. Patinkin was allegedly injured when a window of an elevated train, on which she was a passenger, fell on her finger.

Thereafter, Patinkin, in writing, advised the RTA of her intention to file suit against it for her injuries, directing the notice to the secretary of the RTA and its general attorney. The notice was stamped, indicating it was received in the office of the RTA secretary on January 31, 1989, and was signed by the RTA general attorney, indicating it was received by him a day later.

On August 8, 1989, plaintiff filed a single-count complaint against the RTA for negligence.

The RTA moved to dismiss the complaint pursuant to a provision in the Regional Transportation Authority Act (RTA Act), immunizing it from liability for injuries resulting from the negligence of any transportation agency to which the RTA provided funds or with which it had a purchase of service agreement. (Ill. Rev. Stat. 1989, ch. 111⅔, par. 705.03.) The motion was supported by the affidavit of the chief administrative officer of the RTA, stating the RTA did not own or operate transportation facilities such as the one alleged in plaintiff’s complaint.

On December 7, 1989, plaintiff amended her complaint to state two counts. Count I repeated the allegations of the original complaint against the RTA. Count II stated the same allegations, but against the CTA, adding that the notice plaintiff caused to be served on the RTA constituted sufficient notice to the CTA.

Plaintiff then sought to depose the RTA general attorney, apparently for purposes of establishing that the RTA, as a matter of practice, forwarded notices of suit served upon it to the CTA, and did so in the instant case. When the RTA refused plaintiff’s request, plaintiff moved, unsuccessfully, to compel the deposition.

Plaintiff’s action against the RTA was subsequently dismissed on February 22,1990.

The CTA then also moved to dismiss (Ill. Rev. Stat. 1989, ch. 110, par. 2—619) the action stated against it in count II. The CTA asserted plaintiff had failed to serve it with proper notice within six months from the date of injury and failed to file the action against it within one year from the date of injury, both as required under section 41 of the Metropolitan Transit Authority Act (MTA Act) (Ill. Rev. Stat. 1989, ch. 111⅔, par. 341).

On April 18, 1990, the circuit court dismissed, with prejudice, plaintiff’s action against the CTA.

This appeal followed.

Initially, we note plaintiff directs attention on appeal almost exclusively to whether it was proper to deny plaintiff an opportunity to depose the RTA general attorney. That issue presupposes that facts gleaned through such discovery would have shown that dismissal of the complaint was improper for lack of proper notice. We therefore consider plaintiff’s argument within the larger examination of whether the facts, as alleged, or as might be established through discovery, establish compliance with the notice requirements of the MTA Act.

Section 41 requires that actions against the CTA be commenced within one year from the date of injury. (Ill. Rev. Stat. 1989, ch. 111⅔, par. 341.) Persons seeking to commence such actions must, within six months from the date of injury, “file in the office of the secretary of the [Chicago Transit] Board and also in the office of the General Attorney for the [CTA] either by himself, his agent, or attorney, a statement, in writing, signed by himself, his agent, or attorney,” giving the names and addresses of relevant parties, including attending physicians, and the time and place of the accident. (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 111⅔, par. 341.) Failure to comply with the above provisions will result in dismissal of the action against the CTA. Ill. Rev. Stat. 1989, ch. 111⅔, par. 341.

The Illinois Appellate Court has previously noted that section 41, like other statutes of similar nature, is mandatory, requiring the claimant to bear the burden of compliance in strict conformity with its stated terms. (Hayes v. Chicago Transit Authority (1950), 340 Ill. App. 375, 382, 92 N.E.2d 174, 176.) The point has been illustrated most often in cases in which notice in accordance with the section’s terms was lacking, but the CTA was otherwise made aware of the accident and the injured party’s intent to sue.

For example, in Murphy v. Chicago Transit Authority (1989), 191 Ill. App. 3d 918, 548 N.E.2d 403, the appellate court held section 41 had not been complied with even though the CTA acknowledged receipt of written documents from plaintiff’s counsel and her physician in support of plaintiff’s claim. Additionally, the court noted, plaintiff’s alleged mailing of a letter on instructions of a CTA claims manager, the receipt of which the CTA disputed, could not have constituted a filing in the office of the secretary or of the general attorney as required by section 41. (Murphy, 191 Ill. App. 3d at 921, 548 N.E.2d at 405.) Although recognizing improper notice might be cured by the filing of a complaint, itself, within the six-month period, the court rejected the argument that the CTA could be estopped to assert noncompliance with section 41 where it had received information or documents pertaining to a claim, but the statutory notice was defective and the suit not filed within six months from the date of injury. Murphy, 191 Ill. App. 3d at 921-22, 548 N.E.2d at 405.

More closely analogous to the instant case, however, is Hayes v. Chicago Transit Authority (1950), 340 Ill. App. 375, 92 N.E.2d 174. Hayes involved an action against the CTA for injuries plaintiff allegedly received in January 1948 while riding on a streetcar. In February 1948, the CTA procured, through its investigators, a written statement from the plaintiff giving the details of the incident, including the name of the attending physician. In her complaint, plaintiff alleged that the statement “was served upon and was available” to the secretary of the Chicago Transit Board and the CTA general attorney. (Hayes, 340 Ill. App. at 384, 92 N.E.2d at 177.) Plaintiff also alleged that a “supplemental” written statement, containing the same information, was filed in the offices of the secretary and the general attorney in October 1948.

In its answer, the CTA denied that any statement was served within the six-month period and denied that the statement filed in October complied with the terms of section 41.

By way of a prayer contained in an affidavit, plaintiff sought to have the circuit court force the CTA to produce, for her inspection, the February 1948 statement, as well as “a letter or medical report” sent to the CTA at its request by the plaintiff’s attending physician. Ultimately, the CTA was ordered to produce the requested documents, refused to do so, and was held in contempt.

On appeal, the appellate court reversed the contempt order, concluding that the plaintiff had not complied with the terms of section 41 regarding notice. The court observed that the letter or medical report of the attending physician could not be considered proper notice because the document was not signed by the plaintiff, her agent, or attorney as required by section 41. (Hayes, 340 Ill. App. at 382, 92 N.E.2d at 176.) Nor could the statement procured by the CTA investigator constitute proper notice because plaintiff’s affidavit failed to establish that that document was filed in the office of the secretary and also in the office of the general attorney by plaintiff, her agent, or her attorney as required by section 41. (Hayes, 340 Ill. App. at 382, 92 N.E.2d at 176.) The court found it irrelevant that the documents were in CTA files and were available to it, as neither fact established compliance with section 41. Hayes, 340 Ill. App. at 385-86, 92 N.E.2d at 178.

We agree with the court’s analysis in Hayes reflecting that, in determining whether the requirements of section 41 have been complied with, the section’s terms must be strictly construed. However, here, because of plaintiff’s allegations that she served the RTA and that the RTA, in turn, transmitted the notice to the CTA, the analysis is more complicated, involving two issues based on the specific language of the section. We must consider whether plaintiff’s service of notice in the office of the RTA secretary and the RTA general attorney can be construed as a filing with the CTA based on the organization and relationship of those two entities. Alternatively, we must consider whether the RTA, in transmitting the notice to the CTA, as alleged, can be said to have acted as plaintiff’s agent under the section.

The RTA and the CTA were created pursuant to legislative enactment, and the extent of their relationship is governed entirely by the provisions of their separate enabling acts. The RTA was created by the RTA Act as a “single authority” to “provide for, aid, and assist public transportation in the northeastern area of the State” by “providing financial review of the providers of public transportation” and by “facilitat[ing] public transportation provided by Service Boards.” (Ill. Rev. Stat. 1989, ch. 111⅔, par. 701.02(c).) The CTA is included as one of the “Service Boards,” as that term is defined in the RTA Act, which are empowered to determine the level and type of transportation necessary for the metropolitan area, as well as the safety standards for that service. (Ill. Rev. Stat. 1989, ch. 111⅔, pars. 309b, 701.03, 702.01, 702.11.) Correspondingly, the CTA was created by the MTA Act to “acquire, construct, own, operate and maintain *** a transportation system in the metropolitan area of Cook County,” and was empowered to receive funds for that purpose from the RTA. (Ill. Rev. Stat. 1989, ch. 111⅔, pars. 306, 309a.) Regarding organization, with the exception of the CTA chairman, who serves as a member of the Chicago Transit Board, the governing and administrative body of the CTA, and also as a director of the RTA board, the CTA and the RTA have separate administrative compositions. (Ill. Rev. Stat. 1989, ch. 111⅔, pars. 319, 322, 324, 327, 703.01—10.) In short, after having carefully reviewed the provisions of both acts, we simply find nothing to suggest a relationship between the CTA and RTA which would permit service of notice of suit upon the RTA to satisfy the specific requirement of section 41 that the notice be filed in the office of the Chicago Transit Board and also in the office of the CTA general attorney.

Nor can we conclude transmittal of notice by the RTA to the CTA could be construed as a filing by plaintiff’s agent under section 41, even assuming that, by deposing the RTA general attorney, plaintiff could establish the notice was transmitted by the RTA to the appropriate offices of the CTA within the appropriate time. Generally, agency is a legally created, consensual, fiduciary relationship between two persons, by which one person, the principal, has the right to control the conduct of another, the agent. (Slates v. International House of Pancakes, Inc. (1980), 90 Ill. App. 3d 716, 413 N.E.2d 457.) Plaintiff’s complaint did not allege that such a relationship existed between plaintiff and the RTA and no contention has been raised that the discovery denied plaintiff would establish that fact. Nevertheless, it is clear no consensual, fiduciary relationship existed between plaintiff and the RTA by which it could be determined that the RTA was plaintiff’s agent for purposes of compliance with section 41. The fact that the RTA might have taken the initiative to transmit the notice served upon it to the CTA cannot, alone, establish the RTA as plaintiff’s agent. Parenthetically, we note that no provision in the MTA Act requires or specifically empowers the RTA to transmit any notice served upon it to any provider of public transportation, including the CTA.

As the court previously recognized in Hayes, the burden to comply with the specific filing requirements of section 41 to preserve an action against the CTA is placed squarely upon the person intending to maintain the action. Therefore, because neither the allegations in plaintiff’s complaint nor any fact which might be revealed from discovery could establish plaintiff, her agent, or her attorney filed notice in the office of the secretary of the Chicago Transit Board and also in the office of the CTA general attorney as required by section 41, we find no reason to disturb the orders denying plaintiff opportunity to depose the RTA general attorney, and further conclude the action against the CTA was properly dismissed.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.


author: JUSTICE DiVITO

text:
    THE COUNTY OF COOK, Petitioner-Appellant, v. THE ILLINOIS LOCAL LABOR RELATIONS BOARD et al., Respondents-Appellees.
    First District (2nd Division)
    No. 1—90—0039
    Opinion filed June 4, 1991.

      Cecil A. Partee, State’s Attorney, of Chicago (LaVerne Rolle Saunders, Assistant State’s Attorney, of counsel), for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Ann Plunkett-Sheldon, Assistant Attorney General, of Chicago, of counsel), for respondents.
   JUSTICE DiVITO

delivered the opinion of the court:

The Illinois Local Labor Relations Board (the Board) found that the practice of Cook County (the County) of tape-recording the final grievance step before arbitration constituted an unfair labor practice. In this appeal, the County contends that (1) this action was barred by res judicata or collateral estoppel; and (2) the Board erred in finding that the actions of the County constituted an unfair labor practice.

On December 13, 1988, the Illinois Nurses’ Association (the Association) filed an unfair labor practice charge with the Board, alleging that the County had violated sections 10(a)(1) and (a)(4) of the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, pars. 1610(a)(1), (a)(4)) (the Act) by continuing to tape-record the final grievance step before arbitration. The Board held a hearing concerning this charge on April 11,1989.

The evidence adduced established that the County and the Association were parties to a collective bargaining agreement effective December 1, 1984, through November 20, 1987. Article 11, section 4, of this agreement provided for a three-step grievance procedure before submission to arbitration; however, in practice, there were actually four steps. They consisted of grievance hearings before (1) the immediate supervisor; (2) the designee of the hospital director; (3) the hospital labor relations unit; and (4) the chief administrative officer/hearing officer. The parties agreed to eliminate the third step during negotiations for the 1984-87 collective bargaining agreement; however, that step was not actually discontinued until some time later. The 1984-87 collective bargaining agreement contained no reference relating to the tape recording of any step of the grievance procedure.

Notwithstanding the absence of authorization, the County began tape-recording the fourth step of the grievance procedure in 1983. The Association voiced no objection until the County began tape-recording the third step of the grievance procedure. On March 3, 1986, the Association filed a charge against the County, alleging that by tape-recording the third and fourth steps of the grievance procedure and the predisciplinary hearings, the County violated the same sections of the Act as those involved in the instant case. The Association, however, never protested the taping of the fourth-step hearings on the record of those hearings. Moreover, the Association did not protest the taping of fourth-step grievance hearings to the County in writing until 39 months after the County began recording them, and then it did so only because the County had begun the taping of the third step and predisciplinary hearings. County of Cook, 3 Pub. Employee Rep. (Ill.) par. 3013, No. L—CA—86—85 (ILLRB Feb. 4, 1987).

Following a hearing concerning the 1986 charge, the Board found that the tape recording of grievance sessions was a nonmandatory subject of bargaining, that is, it was a matter which could be implemented only by mutual agreement of the parties. The Board noted that the tape recording of these proceedings had a tendency to inhibit the free and open discussion necessary for successful collective bargaining. Nevertheless, the Board found that, by failing to protest the taping of fourth-step proceedings (those before the hearing officer) for over three years, the Association had waived any right to bargain over this practice and had acquiesced to it. Regarding the taping of third-step proceedings (those before the hospital labor relations unit, which have since been eliminated), the Board found that because the Association immediately protested the practice, its objection was timely and valid. It thus ordered the County to cease taping all grievance proceedings, except for the fourth step, as that had become an established procedure. County of Cook, 3 Pub. Employee Rep. (Ill.) par. 3013 (ILLRB Feb. 4, 1987).

Susan Bennett, the Association’s chief negotiator for the 1987-90 collective bargaining agreement, testified at the hearing. She stated that between November 5, 1987, and October 10, 1988, the Association and the County met approximately 25 times to bargain over a successor agreement to the 1984-87 contract. During those negotiations, the subject of taping the prearbitration grievance sessions was discussed on February 2, March 3, and April 13, 1988. Each time, Association representatives broached the subject.

At the February 2, 1987, session, Bennett informed John Kalchbrenner, assistant director of position classification for the County, that the Association objected to the County’s continued practice of taping the grievance hearings and wanted to bargain on the issue. She told him that the taping of these sessions inhibited discussion and prohibited effective problem solving. In her opinion, this was particularly detrimental because the meeting with the hearing officer was the last opportunity to resolve the grievance before it was submitted to arbitration.

John Kalchbrenner testified on behalf of the County. He stated that the County began regularly taping the Association grievance meetings with the hearing officer in 1983. He disagreed with Bennett at the February 2 negotiating session, explaining that the County viewed the final step of the grievance process not as a problem-solving session, but as an opportunity for the hearing officer to listen to the facts and render a decision either upholding or overturning the hospital’s response to the grievance. He told Bennett that the County needed to record these sessions so that the hearing officer could refer to the tapes when making his decision. Moreover, the taping relieved the hearing officer of taking notes at the hearing, thus enabling him to concentrate on the witnesses and their testimony.

On February 2, 1987, Bennett sent a letter to William Doyle, the County’s chief administrative officer, stating that the Association was objecting to the tape recording of the prearbitration grievance hearings and asking that the County bargain over the issue. She further stated that there was “no mutual agreement to the tape recording of any discipline or grievance proceeding” and that the Association would no longer participate in any hearings, meetings, or other bargaining proceedings with the County which would be tape-recorded.

Doyle responded in a letter dated February 10, 1988. He stated that, pursuant to the prior decision by the Board, the County had a right to tape-record the prearbitration sessions and that the County would continue to do so “unless and until the parties mutually agree to something different.” (Emphasis in original.) Doyle also wrote that if the Association refused to participate in grievance meetings on this basis, the County would have “no choice but to proceed with such proceedings ex parte and also explore its options under the Act.”

On March 3, 1988, the issue of tape-recording was again raised at a collective bargaining meeting. Bennett told Kalchbrenner at that time that the Association still objected to the taping of grievance hearings, but would participate in the hearings under protest. She also stated that once the new contract became effective, the Association expected the County to cease its tape-recording. Kalchbrenner responded that the County’s position remained unchanged.

On April 13, 1988, the parties again discussed the issue at a bargaining session. The same positions were asserted and the meeting ended without either party altering its position on the issue.

On April 20, 1988, Bennett wrote another letter to Doyle, again expressing the Association’s objections to the taping of the hearings. She stated the Association’s view that its present objection to this practice expressed in negotiations for a new collective bargaining agreement “cancels any implied agreement established by silence over time and practice.” Doyle responded by a letter dated May 24, 1988, wherein he reiterated that the Board had previously ruled that tape-recording the final step of the proceedings “ ‘had become an established practice among the parties’ ” and that the Association’s present objection did not cancel the past practice.

In the next several months following these letters, the issue of tape-recording was not raised by either party. On October 10, 1988, the parties settled on a new collective bargaining agreement, which was to be effective from December 1, 1987, through November 30, 1990. The new contract restated the grievance procedure contained in the 1984-87 agreement and was silent regarding the tape recording of the prearbitration hearings.

The first prearbitration grievance hearing to be conducted under the new contract was set for December 2, 1988. On December 1, 1988, Bennett contacted Kalchbrenner and asked that he instruct the County’s hearing officer to refrain from tape-recording the hearing. Kalchbrenner refused Bennett’s request and said that the County would continue to tape-record the hearings until the Board told it to do otherwise.

The December 2 grievance hearing was taped by the County’s hearing officer and the Association participated under protest. In a letter to Kalchbrenner dated December 9, 1988, Bennett renewed the Association’s objections to the taping of the December 2 hearing. There is no indication in the record that Kalchbrenner responded to this letter. On December 13, 1988, the Association filed its unfair labor practice charge with the Board, which found that the County’s tape-recording constituted an unfair labor practice. The County appeals from that finding.

I

The County initially contends that the instant case is precluded by either res judicata or collateral estoppel. The County’s contention is premised upon the previous ruling of the Board in connection with the 1986 charge brought by the Association.

The Board rejected the County’s argument and so do we. We agree with the Board’s conclusion that by objecting to the County’s continued tape-recording of third-step proceedings (now those before the hearing officer) during collective bargaining for the 1987-90 contract, the Association withdrew its acquiescence to the practice.

The Illinois Supreme Court discussed both res judicata and collateral estoppel in Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 461 N.E.2d 959. It stated:

“A prior judgment may have preclusive effects in a subsequent action under both res judicata and collateral estoppel. The doctrine of res judicata provides that ‘a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action.’ * * *
The doctrine of collateral estoppel applies when a party or someone in privity with a party participates in two separate and consecutive cases arising on different causes of action and some controlling fact or question material to the determination of both causes has been adjudicated against that party in the former suit by a court of competent jurisdiction.” (Emphasis in original.) (Housing Authority, 101 Ill. 2d at 251-52.)

The court further noted that res judicata is conclusive not only as to every matter offered in the first action, but also as to any other matter which might have been offered to sustain or defeat a claim or demand. In order for a previous judgment to be conclusive, it must appear clearly and certainly that the identical and precise issue was decided in the previous action. Benton v. Smith (1987), 157 Ill. App. 3d 847, 853, 510 N.E.2d 952.

It is clear that res judicata is not applicable to the instant action. In the 1986 case, the issue was whether the County, when requested by the Association, was obligated to bargain during the term of the contract over the practice of taping the hearings before the hearing officer, a practice which had been in existence without objection for 39 months. In the earlier action, the Board held that the Association had acquiesced to the taping of those sessions, and thus the County was not obligated to bargain over the practice at that time. What was neither raised nor addressed was whether the County was permanently freed from bargaining with the Association on the subject of tape-recording those proceedings.

Moreover, res judicata could not be applied to bar the instant action because key circumstances have changed. Though the Association did not object for 39 months to the tape recording under the prior collective bargaining contract, it immediately objected at the first grievance hearing under the new contract. In addition, the Association’s consistent pattern of objecting on the record during collective bargaining sessions and substantiating these objections with follow-up letters to the County further distinguishes the present situation from the prior one. These actions showed an intent to no longer acquiesce to the practice of tape-recording and represented a demand that there be collective bargaining on the issue.

Collateral estoppel is likewise unavailable to preclude the instant action. Because of the changed circumstances, as discussed above, there could be no “controlling fact or question material to the determination of both causes” which has been adjudicated in the prior proceeding. Benton, 157 Ill. App. 3d at 853; Housing Authority, 101 Ill. 2d at 252.

The County’s reliance on res judicata or collateral estoppel to bar the instant action is unavailing.

II

The County also contends that the Board erred in finding that the actions of the County violated the Act. The relevant portions of the Act provide:

“§10. Unfair labor practices, (a) It shall be an unfair labor practice for an employer or its agents:
(1) to interfere with, restrain or coerce public employees in the exercise of the rights guaranteed in this Act or to dominate or interfere with the formation, existence or administration of any labor organization ***;
* * *
(4) to refuse to bargain collectively in good faith with a labor organization which is the exclusive representative of public employees in an appropriate unit, including, but not limited to, the discussing of grievances with the exclusive representative.” Ill. Rev. Stat. 1989, ch. 48, pars. 1610(a)(1), (a)(4).

The general rule is that courts will accord deference to the interpretation placed on a statute by the agency charged with its administration and enforcement. (Hardin County Education Association v. Illinois Educational Labor Relations Board (1988), 174 Ill. App. 3d 168, 173, 528 N.E.2d 737.) In this case, that agency is the Board. The Illinois Supreme Court has reasoned that “[a] significant reason for this deference is that courts appreciate that agencies can make informed judgments upon the issues, based on their experience and expertise.” Illinois Consolidated Telephone Co. v. Illinois Commerce Comm’n (1983), 95 Ill. 2d 142, 153, 447 N.E.2d 295.

In the instant case, the Board found that the County violated its duty to bargain under the relevant sections of the Act by continuing to tape-record the final grievance session after the 1987-90 collective bargaining agreement became effective. The County argues that the Association’s prior acquiescence to the taping means that it has forever waived the right to bargain on the issue. We reject that argument. It is a well-established principle of labor law that waiver of a statutorily protected right must be stated clearly and unmistakably. (Metropolitan Edison Co. v. National Labor Relations Board (1983), 460 U.S. 693, 708, 75 L. Ed. 2d 387, 400, 103 S. Ct. 1467, 1477.) Not only is the record devoid of any such statement of waiver, it is, to the contrary, replete with evidence of objection.

Rosario v. Amalgamated Ladies’ Garment Cutters’ Union Local 10 (2d Cir. 1979), 605 F.2d 1228, cited by the County, is inapposite. Rosario involved the tape recording of disciplinary proceedings, which the court likened to a criminal trial. Because of the quasi-judicial nature of those proceedings, the court held that it was acceptable for them to be tape-recorded. The court distinguished that type of proceeding from a grievance session, which is a more informal meeting where openness and compromise are crucial, and which could be hindered by recordation.

The Board relied on Bakery Workers (Nabisco Brands) (1986), 272 NLRB 1362, for the proposition that a union could not insist upon the taping of collective bargaining and grievance sessions even though the parties had an eight-year past practice of doing so. By insisting on the taping of such sessions, the union illegally refused to bargain. The same argument applies at bar; the only difference is that the parties are reversed.

In the instant case, the Board reiterated that tape-recording grievance sessions is a nonmandatory subject of bargaining that cannot be implemented without mutual agreement of the parties. Despite the Association’s earlier acquiescence to the taping practice, the Board found that the Association had nullified its acquiescence by objecting to it during collective bargaining negotiations.

Based on the Board’s expertise in this area and the fact that its findings are supported by the record and by case law, we are unable to say that the Board erred in holding that the County violated sections 10(a)(1) and (a)(4) of the Act.

Accordingly, the finding of the Illinois Local Labor Relations Board is affirmed.

Affirmed.

SCARIANO, P.J., and HARTMAN, J., concur.


author: JUSTICE WHITE

text:
      In re MARRIAGE OF CAROL J. ZIEMANN, Petitioner, and DOUGLAS S. ZIEMANN, Respondent (William T. Regas, Appellant; Carol J. Ziemann, n/k/a Carol J. Smith, Appellee).—CAROL J. SMITH, f/k/a Carol J. Ziemann, Appellant, v. WILLIAM T. REGAS, Appellee.
    First District (3rd Division)
    Nos. 1—89—2886, 1—89—3433 cons.
    Opinion filed June 5, 1991.

      Law Offices of William T. Regas, of Park Ridge (William T. Regas and Mark B. Friedman, of counsel), for William T. Regas.
    Anthony J. Pauletto, of Skokie,-for Carol J. Ziemann.
   JUSTICE WHITE

delivered the opinion of the court:

These consolidated appeals involve a client-attorney dispute over attorney fees in connection with a marriage dissolution proceeding heard in the circuit court of Cook County.

The attorney, William T. Regas, appeals from dismissal of his petition for a fee award against the client, Carol J. Ziemann, now known as Carol J. Smith. Smith appeals from dismissal of her petition for an award against Regas of fees for defending against his fee appeal.

For the reasons that follow, we reverse and remand on Regas’ appeal and affirm on Smith’s appeal.

Facts

Smith signed a fee agreement with Regas, who replaced her earlier attorney. Regas told Smith that Leslie Poole, another lawyer whom Regas called his “associate,” would be primarily responsible for her case. Poole was not a formal member of a law firm with Regas but shared an office suite, equipment, and staff with Regas. Smith accepted Poole’s services, praised them, subsequently promised to pay Regas, and did pay him nearly $3,000 on account. She also initially expressed satisfaction with the outcome of the dissolution proceedings handled by Regas’ office. However, she failed to pay the balance of his bill and retained other counsel for post-judgment proceedings.

Regas filed a fee petition under section 508(a) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 508(a)). The petition sought an award of $12,070, representing the unpaid balance of a total fee bill of $14,870. The fee petition was dismissed on Smith’s motion because of Regas’ alleged violation of Rule 2—107 of the Code of Professional Responsibility (107 Ill. 2d R. 2—107) through participation in an allegedly undisclosed and unconsented-to arrangement for division of fees with lawyers who were not partners in or associates of his firm. The lawyers in question were Poole and Michael Ek, another lawyer who shared the office suite with Regas.

REGAS’ APPEAL, No. 1-89-2886

Regas raises issues pertaining to trial-court procedure, standing, law office organization, and fee arrangements. Because we decide in his favor on the issue of fee arrangements, we need not address his other contentions.

Regas contends that he paid the lawyers whom he engaged a flat hourly rate and that their pay depended on how many hours they worked, not on whether he received payment from the client. Accordingly, he says, regardless of whether they were his “associates” in terms of Rule 2—107, his payments to them did not constitute a division of fees, and thus, he did not violate Rule 2 — 107.

Regas cites ABA Committee on Ethics and Professional Responsibility, Formal Opinion 88—356 (1988), on temporarily hired lawyers. The passage that he cites reads as follows:

“Assuming that a law firm simply pays the temporary lawyer reasonable compensation for the services performed for the firm and does not charge the payments thereafter to the client as a disbursement, the firm has no obligation to reveal to the client the compensation arrangement with the temporary lawyer. Rule 1.5(e), relating to division of a fee between lawyers, does not apply in this instance because the gross fee the client pays the firm is not shared with the temporary lawyer. The payments to the temporary lawyer are like compensation paid to nonlawyer employees for services and could also include a percentage of firm net profits without violation of the Rules or the predecessor Code. See ABA Informal Opinion 1440 (1979).
If, however, the arrangement between the firm and the temporary lawyer involves a direct division of the actual fee paid by the client, such as percentage division of a contingent fee, then Rule 1.5(e)(1) requires the consent of the client and satisfaction of the other requirements of the Rule regardless of the extent of the supervision.
The requirement of Rule 1.5(a) that the total fee be reasonable is, of course, a restriction only on the fee charged to the client and not on how much is paid to the temporary lawyer. That requirement must be satisfied in all events.”

Though the cited ethics opinion pertained to lawyers hired temporarily by a firm, rather than lawyers working more or less permanently as independent contractors with another lawyer as in the present cause, Regas persuasively contends that the enunciated fee-division principles apply here as well.

Regas argues that his fee arrangement with Poole and Ek did not constitute a division of fees such as has been addressed in numerous cited cases (e.g., O'Hara v. Ahlgren, Blumenfeld & Kempster (1989), 127 Ill. 2d 333, 537 N.E.2d 730; Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 324 N.E.2d 417; Schniederjon v. Krupa (1987), 162 Ill. App. 3d 192, 514 N.E.2d 1200; Hofreiter v. Leigh (1984), 124 Ill. App. 3d 1052, 465 N.E.2d 110), but rather that it constituted a flat compensation arrangement with Poole and Ek not dependent on Regas’ receipt of payment from Smith.

Smith cites Phillips v. Joyce (1988), 169 Ill. App. 3d 520, 523 N.E.2d 933, as support for invalidating Regas’ fee arrangement under Rule 2—107. Phillips was a dispute between two wholly unrelated law firms that had collaborated with each other in representing class plaintiffs. One of the firms attempted to disavow its own fee contract with the other by terming it illegal under Rule 2—107, because the disavowing firm had failed to disclose the fee contract’s details to the clients. Yet the arrangement between the two firms had been disclosed in general terms to most of the class representatives, who had then agreed to it.

The Phillips court wrote:

“Apparently, [the disavowing firm] advocates the disclosure of every facet of the division of work and fees before a fee-sharing contract could be upheld under DR 2—107.
We believe, however, that a standard of substantial compliance is preferable because it comports with practical realities. In fact, such a standard is consonant with the Illinois Supreme Court’s opinion in Kravis v. Smith Marine, Inc. [(1975), 60 Ill. 2d 141, 324 N.E.2d 417,] and other cases that have considered the scope of the disclosure requirement. One court, faced with a similar question involving the disclosure of a fee-sharing agreement to a client, found that the client presumably knew of the arrangement, if not the details, stating, ‘This method of dealing admittedly may not strictly comport with the guidelines of section DR 2 — 107 of the Code of Professional Responsibility, but it certainly does not fall far from this section’s ethical parameters.’ Carter v. Katz, Shandell, Katz and Erasmous (1983), 465 N.Y.S.2d 991, 997, 120 Misc. 2d 1009, 1015 (construing ABA version of the disciplinary rule).” Phillips, 169 Ill. App. 3d at 530-31, 523 N.E.2d at 939.

Discussing in dicta the related question of what disclosure to the unnamed class members was required or feasible, the Phillips court referred to the possibility that the court trying the class action might have “treated Phillips as a member of Joyce’s law firm for purposes of the fee allocation.” Phillips, 169 Ill. App. 3d at 534, 523 N.E.2d at 942.

Thus, not only does Phillips fail to give any substantial support to Smith’s arguments on disclosure of fee division, but it also tends to support Regas’ additional argument that, for purposes of Rule 2—107, he, Poole, and Ek can be considered as members of the same law firm.

We believe that the trial court erred in concluding that Rule 2—107’s reference to a division of fees was intended to reach a flat hourly compensation arrangement such as Regas had with Poole and Ek, particularly since the client (Smith) was well aware that Regas’ office associate (Poole) rather than Regas himself would be doing the bulk of the work in her marriage dissolution proceeding.

Smith also raises an unconscionability argument against Re-gas’ fee petition because it is based solely on independent contractors’ services. According to Smith, Regas would receive fees ($75 per hour) highly disproportionate to those he paid to the allegedly underpaid contractors, who received $10 or $14 per hour plus free office space, free equipment use, and free staff support. Smith contends that Re-gas thus would have no incentive to monitor the hours logged by the contractors, thereby becoming merely a broker rather than a lawyer.

Regas correctly replies that this contention was not raised in the trial court and was thus waived. Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 500, 475 N.E.2d 872, 879.

He also replies that Smith agreed that her case would be handled by Regas’ office associate; she does not argue that the agreed hourly rate of $75 for office time and $85 for court time was unreasonable; Regas made no charge for his own estimated 12 to 15 hours of personal time; and he reduced the hourly rate to a flat $75. In addition, he says that the record contains no evidence that he failed to properly monitor the independent contractors, and he testified that he told Smith that all the work would be done under his supervision.

Regardless of Regas’ plausible response to Smith’s unconscionability argument here, it should be recalled that Regas’ fee petition was brought under section 508(a) of the Act, not as a separate contractual action at law. A court considering a section 508(a) fee petition is to weigh the reasonableness of the fee sought, even if it is sought pursuant to a definite contract. (In re Marriage of Gorsich (1991), 208 Ill. App. 3d 852, 856-57, 567 N.E.2d 601, 604; In re Marriage of Pitulla (1986), 141 Ill. App. 3d 956, 961-62, 491 N.E.2d 90, 93-94; see generally Ill. Ann. Stat., ch. 40, par. 508, Supp. to Historical & Practice Notes, at 167-68 (Smith-Hurd Supp. 1990).) Therefore, although Regas’ fee arrangement satisfied Rule 2—107 because his fee arrangement with Poole and Ek did not constitute a “division” of fees, on remand his fee petition will still have to pass a reasonableness test in light of all the circumstances.

SMITH'S APPEAL, No. 1-89-3433

Smith contends that the trial court erred in dismissing her petition for an award against Regas of fees in connection with defending against Regas’ appeal. Smith contends that a section 508(a) fee award may be made not only against a spouse but also against an attorney who appeals from a judgment on the attorney’s own fee petition.

At the time of Smith’s petition, section 508(a) read in pertinent part as follows:

“The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order either spouse to pay a reasonable amount for his own costs and attorney’s fees and for the costs and attorney’s fees necessarily incurred or, for the purpose of enabling a party lacking sufficient financial resources to obtain or retain legal representation, expected to be incurred by the other spouse ***.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 40, par. 508(a).)

More recently, the General Assembly has amended the section to substitute the term “any party” for each of the terms “either spouse” and “the other spouse.” Pub. Act 86—1452, §1, §508(a), eff. July 1, 1991 (amending Ill. Rev. Stat. 1989, ch. 40, par. 508(a)).

Besides generally arguing for an expansive reading of section 508(a)’s then-existing language, Smith asserts that by passing a bill in 1989 that would have made “any party” liable to a section 508(a) fee award, the legislature expressed its intent for purposes of construing the section. The 1989 bill was vetoed, and the legislature did not override the veto. See 86th Ill. Gen. Assem., Senate Bill 134, 1989 Sess.; 86th Ill. Gen. Assem., 1 Final Legislative Synopsis & Digest (No. 17), 1989 Sess., at 87-88 (1990).

A legislative amendment, even when successfully enacted, ordinarily indicates only an intent to change, not clarify, a statute, particularly where the statute was not previously ambiguous. (Bonfield v. Jordan (1990), 202 Ill. App. 3d 638, 645, 560 N.E.2d 412, 417.) Section 508(a), as it read at all times pertinent hereto, was not ambiguous in limiting to spouses the parties against whom fee awards could be made. Therefore, neither the vetoed 1989 bill nor the Act’s subsequent amendment by Public Act 86—1452 can be taken as indicating a prior legislative intent to expand fee-award liability.

The court’s authority to order attorney fees under section 508(a) is strictly limited to what is statutorily permissible. Thus, an award under the version of section 508(a) applicable here was not permitted unless the party seeking the award was the legally married “spouse” of the other, despite the fact that certain types of proceedings by legally unmarried individuals are authorized by the Act. (In re Mac Harg (1983), 120 Ill. App. 3d 753, 755, 458 N.E.2d 1154, 1156.) If a cohabitant who is not legally married to a party cannot be considered the party’s “spouse” in terms of section 508(a), a fortiori a party’s attorney cannot be considered the party’s “spouse.” The trial court did not err in dismissing Smith’s fee petition.

Accordingly, the judgment in cause No. 1—89—2886 is reversed, and the cause is remanded to the circuit court of Cook County for further proceedings consistent with this opinion. The judgment in cause No. 1—89—3433 is affirmed.

No. 1 — 89—2886, Reversed and remanded.

No. 1-89-3433, Affirmed.

RIZZI and GREIMAN, JJ., concur.


author: JUSTICE GREIMAN JUSTICE RIZZI,

text:
    BEHZAD ESHAGHI, Indiv. and on Behalf of All Persons Similarly Situated, Plaintiff-Appellant, v. HANLEY DAWSON CADILLAC COMPANY, INC., et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—90—1887
    Opinion filed June 5, 1991.

      RIZZI, J., dissenting.
    Alexander, Finnerty & Green, of Chicago, for appellant.
    Rosenthal & Schanfield, of Chicago (Robert R. Tepper and Lynn M. Esp, of counsel), for 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), 156 Ill. App. 3d 154, 510 N.E.2d 409; State ex rel. Skinner v. Lombard Co. (1982), 106 Ill. App. 3d 307, 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 Co. (1988), 166 Ill. App. 3d 442, 444, 519 N.E.2d 1056; Ewing v. Liberty Mutual Insurance Co. (1985), 130 Ill. App. 3d 716, 717, 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 (Ill. Rev. Stat. 1989, ch. 110, par. 2—801):

“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, 373 N.E. 2d 327, rev’d on other grounds (1979), 75 Ill. 2d 457, 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 Ride 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. 3d 753, 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 misled 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.”

In Miner v. Gillette Co. (1981), 87 Ill. 2d 7, 14, 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 customers. Because plaintiff cannot pinpoint defendant’s offensive actions, he cannot fairly represent

other litigants to be joined. We agree with the trial court’s finding that plaintiff cannot be a member of the class.

Our supreme court has clearly defined the role of the appellate court in reviewing class certifications. Generally, class certification is a matter within the sound discretion of the trial court and only a clear abuse of that discretion or application of impermissible legal criteria would justify reversal of the trial court’s decision. McCabe, 57 Ill. App. 3d 450, 373 N.E.2d 327.

The trial court ruled that even if plaintiff were a proper member of the class, he did not meet the section 2 — 801(2) standard requiring that a common question of law or fact predominate over any questions affecting only individual members.

The trial court noted substantial differences existed surrounding the individual transactions and that some customers might have been informed of the surcharge and understood it, notwithstanding the signs, while other customers may never have read or seen the signs, or may or may not have been orally informed of the surcharge. Hence, the court below reasoned there were no predominant common questions of fact affecting the rights of members of the proposed class.

We disagree with the trial court on this issue.

To determine whether common questions of law or fact predominate in the certification of a class action, the court must inquire into the issues raised and standard of proof required by the substantive law upon which plaintiff’s complaint is based. (Brooks v. Midas-International Corp. (1977), 47 Ill. App. 3d 266, 361 N.E.2d 815.) Plaintiff’s complaint is based upon violations of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 121½, par. 262), and the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1987, ch. 121½, par. 312) (hereinafter collectively Consumer Fraud Act).

In interpreting the Consumer Fraud Act, courts have declined to use the restrictive elements of common law fraud and have been willing to give effect to the legislative goals behind enactment of this genre of consumer protection legislation. (Carl Sandburg Village Condominium Association No. 1 v. First Condominium Development Co. (1990), 197 Ill. App. 3d 948, 557 N.E.2d 246; People ex rel. Fahner v. Walsh (1984), 122 Ill. App. 3d 481, 486, 461 N.E.2d 78; Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 284, 430 N.E.2d 1012.) Those cases and numerous others echo the theme of the Consumer Fraud Act’s policy to give broader protection than common law fraud or negligent misrepresentation by prohibiting any “deception, fraud, false pretense *** misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment *** in the conduct of any trade or commerce.” (Ill. Rev. Stat. 1987, ch. 121½, par. 262.) Accordingly, the standard of proof required is lenient and does not require that “any person has in fact been misled, deceived or damaged thereby.” Ill. Rev. Stat. 1987, ch. 121½, par. 262.

In Brooks (47 Ill. App. 3d 266, 361 N.E.2d 815), the first case in Illinois to recognize a class action under the Consumer Fraud Act, misleading advertisements of services and subsequent overcharge by a car muffler installer were the basis for a determination that common questions of law and fact predominated. The court noted that the standard of proof required under the Consumer Fraud Act was for defendants to intend to create reliance and not any actual reliance by potential plaintiffs. (Brooks, 47 Ill. App. 3d at 272.) The same considerations are present in the case at bar.

The Uniform Deceptive Trade Practices Act provides that when a party, in the course of his business or occupation, engages in any conduct that creates a likelihood of confusion or misunderstanding, there occurs a deceptive trade practice. Accordingly, in order to prevail, a plaintiff need not prove actual confusion or misunderstanding. Ill. Rev. Stat. 1987, ch. 121½, par. 312 (12).

The Consumer Fraud and Deceptive Business Practices Act incorporates by reference the proscribed activities set out in the Uniform Deceptive Trade Practices Act. See also Buechin v. Ogden Chrysler-Plymouth, Inc. (1987), 159 Ill. App. 3d 237, 511 N.E.2d 1330.

Even without resort to the relaxed standards of proof envisioned by the Consumer Fraud Act, Illinois has been hospitable to maintenance of class actions and has been willing to recognize that common questions of law and fact predominate in a great many situations. The requirement of individual proofs in a matter is not a bar to the maintenance of a class action. Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 371 N.E.2d 634.

In Purcell & Wardrobe Chartered v. Hertz Corp. (1988), 175 Ill. App. 3d 1069, 530 N.E.2d 994, the court rejected Hertz’s argument that auto leases which were individually negotiated, had varying security deposits, and were individualized to various customers regarding those security deposits would defeat class certification. The court found that class certification may be appropriate even though certain questions exist which require individual determination since these questions may be considered within subclasses, thus retaining the common predominating issue.

Even differing State laws which affect various members of a class will not defeat certification. In Illinois, commonality is not destroyed even where members of the class may be differently affected by applicability of the statute of limitations, doctrine of laches, good-faith and unclean hands doctrines, exhaustion of contract or other remedies. Wenthold v. AT&T Technologies, Inc. (1986), 142 Ill. App. 3d 612, 491 N.E.2d 1263 (an action to recover past overtime payments due under Minimum Wage Law); Martin v. Heinold Commodities, Inc. (1985), 139 Ill. App. 3d 1049, 487 N.E.2d 1098, aff’d (1987), 117 Ill. 2d 67, 510 N.E.2d 840 (an action for the payment of foreign service fees in connection with commodity options).

Common questions of law or fact may predominate even where some claims might be barred by res judicata. (O-Kay Shoes, Inc. v. Rosewell (1984), 129 Ill. App. 3d 405, 472 N.E.2d 883.) Claims need not be exact duplicates to qualify for class certification, thus allowing a class action against a health care service where subscribing members have differing claims. (Carrao v. Health Care Service Corp. (1983), 118 Ill. App. 3d 417, 454 N.E.2d 781.) A similar rule obtained in an action against a book publisher for overcharges and common questions of law and fact predominated although many of the customers had been undercharged, according to the evidence adduced at the certification hearing. Barliant v. Follett Corp. (1978), 74 Ill. 2d 226, 384 N.E.2d 316.

Perhaps the first case to cite section 2—801 of the Illinois Code of Civil Procedure was Hoover v. May Department Stores Co. (1978), 62 Ill. App. 3d 106, 378 N.E.2d 762, the statute being enacted during the pendency of the case on appeal. The court believed that the codification of section 2—801(2) “undercut[ ] the vagaries *** developed over the years as to what goes into making a sufficient ‘community of interest’ ” and concluded that although the residents of two States and thousands of defendants’ customers were involved in an action relating to differences in trading stamp policies, the policies of the company provided a factual nexus sufficient to establish the class. Hoover, 62 Ill. App. 3d at 114. (Note: this case was not decided under the statute; rather, the court used the statute as a guide.)

From time to time, Illinois courts have declined to certify a proposed class and have determined that the requisite common questions of law or fact are not present: People v. Weiszmann (1989), 185 Ill. App. 3d 273, 541 N.E.2d 205, a quiet-title suit to determine ownership of certain lands lying between rivers and streams; Blake v. State Farm Mutual Automobile Insurance Co. (1988), 168 Ill. App. 3d 918, 523 N.E.2d 85, failure of defendant to adequately offer increased underinsured motorist coverage where there was no evidence that there was injury to all members of the proposed class, absent intervening factors such as an accident; and Charles Hester Enterprises, Inc. v. Illinois Founders Insurance Co. (1985), 137 Ill. App. 3d 84, 484 N.E.2d 349, dramshop liability insurance customers brought action to recover premiums paid for excess coverage where the right of recovery under the policy was statutorily limited although rates and coverage were available through the Department of Insurance, sales were made through various independent brokers, and some members of the purported class were required to purchase excess coverage by third parties.

A plethora of Illinois cases reveals that Illinois does not require the class members to have exact and duplicate causes of action and that the parties may have significant differences in their claims and yet be identified as members of a plaintiff class. The case-by-case analysis makes it abundantly clear that the case at bar is compatible with Brooks, Hertz and their progeny, rather than the three cases last cited, which declined class certification.

Many of the cases indicate that factual differences among class members may require establishing subclasses to adequately fulfill the mandate of section 2—801(3), which requires the representative party to fairly and adequately protect the interests of the class.

In a large and impersonal society, class actions are often the last barricade of consumer protection. Generally, individual plaintiffs cannot, will not and ought not be required to pursue what would often be trivial relief. In the case at bar, plaintiff’s individual claim is for approximately $10.

Hoover (62 Ill. App. 3d 106) cites a particularly compelling statement with regard to the philosophy to be considered in determining the basis for class certification:

“ ‘To consumerists, the consumer class action is an inviting procedural device to cope with frauds causing small damages to large groups. The slight loss to the individual, when aggregated in the coffers of the wrongdoer, results in gains which are both handsome and tempting. The alternatives to the class action-private suits or governmental actions — have been so often found wanting in controlling consumer frauds that not even the ardent critics of class actions seriously contend that they are truly effective. The consumer class action, when brought by those who have no other avenue of legal redress, provides restitution to the injured, and deterrence of the wrongdoer.’” Hoover, 62 Ill. App. 3d at 112, quoting Landers, Of Legalized Blackmail & Legalized Theft: Consumer Class Actions & the Substance-Procedure Dilemma, 47 So. Cal. L. Rev. 842, 845 (1974).

While we strongly believe that members of the class plaintiff seeks to certify are linked by predominant questions of law or fact, the court below is affirmed because of plaintiff’s inability to show that he is a member of the class which he seeks to represent. His testimony indicates that he is unable to consistently identify what actions or omissions of the defendant were misleading, and the contradictions between various complaints and his deposition testimony do not point to a recollection accurate enough for certification as a class representative.

Accordingly, we affirm.

Affirmed.

CERDA, RJ., concurs.

JUSTICE RIZZI,

dissenting:

We assumed jurisdiction of this appeal when two justices signed an order allowing the plaintiff’s petition for leave to appeal pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308). The order, however, was improvidently granted. I would therefore vacate the order allowing plaintiff’s petition for leave to appeal and dismiss the appeal for lack of jurisdiction.

The appeal is from an order denying class certification. An order denying class certification is not a final order and therefore may not be appealed prior to an entry of a final order unless an appeal is allowed pursuant to Supreme Court Rule 308. (See Ill. Const. 1970, art. VI, §6; Levy v. Metropolitan Sanitary District of Greater Chicago (1982), 92 Ill. 2d 80, 83, 440 N.E.2d 881, 883; Anschul v. Sitmar Cruises, Inc. (7th Cir. 1976), 544 F.2d 1364 (reviewing related provision in 28 U.S.C. § 1292(b) 1988).) Supreme Court Rule 308 provides:

“When the trial court, in making an interlocutory order not otherwise appealable, finds that the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the court shall so state in writing, identifying the question of law involved. Such a statement may be made at the time of the entry of the order or thereafter on the court’s own motion or on motion of any party. The Appellate Court may thereupon in its discretion allow an appeal from the order.” 134 Ill. 2d R. 308.

Here, the purported question of law that was identified by the trial court is as follows:

“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?”

Plainly, the above question is neither a question of law nor a question as to which there is substantial ground for difference of opinion. Rather, it is merely a convoluted interrogative sentence involving the discretion of the trial court based upon facts that are peculiar to this case.

The majority does nothing more than blink at the requirement in Supreme Court Rule 308 that there be a question of law as to which there is substantial difference of opinion. The majority states:

“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.” 214 Ill. App. 3d at 998.

The majority’s conclusion that “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” is not supported and untenable. There is no mixed or pure question of law in the question identified by the trial court. Moreover, if the question identified by the trial court “is not, strictly speaking, a ‘question of law’ as contemplated by Supreme Court Rule 308,” then the plaintiff’s petition for leave to appeal should have been denied for lack of appellate jurisdiction. We have no jurisdictional authority to expand Supreme Court Rule 308 by granting petitions for leave to appeal that are not contemplated by Supreme Court Rule 308.

Under the circumstances, the plaintiff’s petition for leave to appeal should have been denied because the question identified by the trial court does not come within the purview of Supreme Court Rule 308. The order granting the petition for leave to appeal should therefore be vacated and the appeal dismissed for lack of jurisdiction.