commenting that class action could be based on car dealer’s failure to inform customers of surcharge for materials even though some customers might have learned of surcharge during the course of individual negotiations for work on their cars
How later courts described this case
- commenting that class action could be based on car dealer’s failure to inform customers of surcharge for materials even though some customers might have learned of surcharge during the course of individual negotiations for work on their cars
Written by the judges who cited it.
The opinion
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.