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Barliant v. Follett Corp.

OPINION FILED SEPTEMBER 27, 1977.

DONALD E. BARLIANT, D/B/A MAYUBA BOOK STORE, PLAINTIFF-APPELLANT,

v.

FOLLETT CORPORATION, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH M. WOSIK, Judge, presiding.

MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Plaintiff appeals from an order of the circuit court of Cook County, entered on January 23, 1976. The order, by Circuit Judge Joseph M. Wosik, allowed the defendant Follett Corporation to withdraw its answer to plaintiff Barliant's complaint, vacated an order previously entered in the case by another circuit judge, Charles R. Barrett, on November 15, 1972, and dismissed the class action allegations of Barliant's complaint.

The issues on appeal are whether Judge Wosik was empowered to vacate the previous order of Judge Barrett; whether Barliant's complaint alleged sufficient facts to establish a class action; whether Judge Wosik improperly allowed the settlement of another class action, which had been consolidated with the instant action, by failing to disclose the terms of the settlement; and whether it was inconsistent for the trial judge, on the one hand, to approve a class action brought by the State of Illinois, as intervenor, on behalf of a subclass, while, on the other, to dismiss the class action brought on behalf of the main class.

Donald Barliant, the plaintiff here, is the owner of Mayuba Book Stores. He is also an attorney-at-law licensed to practice in this State. On June 6, 1972, Barliant filed a complaint in the circuit court on his own behalf and on behalf of "all persons who have purchased books from defendant, FOLLETT CORPORATION, which books have been shipped to said class plaintiffs in the normal channels of commerce." The complaint related the following: defendant's terms of sale, published in its various catalogues, in trade journals, printed on its order forms, and consistent with custom and usage in the publishing industry, provided for delivery of merchandise F.O.B. its warehouse in Chicago. Pursuant to these terms, plaintiff purchased books and reimbursed defendant for the transportation costs from defendant's warehouse to his place of business. On or about January 1, 1971, without amending its published terms of sale, defendant began to include a charge on its computerized bills to all of its customers higher than the U.S. Postal Service fourth class (or bookpost) rates (the medium by which all books ordered by plaintiff from defendant were shipped), and designated only as "BKPST TRANSINS." For unexplained reasons, Barliant paid the additional charges on a number of orders, a total of approximately $15. In May of 1972, Barliant "discovered" the overcharges and demanded a refund from defendant. Defendant allegedly refused.

Barliant alleged that the "BKPST TRANS — INS" charge is an attempt by defendant to increase the price of the books it sells over and above the agreed purchase price. Barliant thus alleges breach of contract, fraud, and a deceptive trade practice within the meaning of the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1971, ch. 121 1/2, par. 311 et seq.).

Barliant further alleged that the claims of the various members of the class pose common questions of law and fact; that there is a community of interest among class members in both the subject matter of the suit and the remedy sought; that the individual plaintiff is able to fairly and adequately represent the interests of the absent class members; that a class action is necessary to prevent a multiplicity of lawsuits; that a class action is the superior method of resolving the dispute because of the small amounts of the individual claims; and that the remedy at law is inadequate.

Barliant prayed for an accounting, for the appointment of a receiver, for temporary and permanent injunctions against defendant's activities, for judgment in the amount of the overcharges, for an unspecified amount as punitive damages, for costs and attorneys' fees, for an injunction against the prosecution of any other further actions involving these issues and the same class plaintiffs, and for any other relief deemed appropriate by the court.

Following assignment of the case to Judge Charles R. Barrett, defendant moved to dismiss the action or, in the alternative, for judgment on the pleadings. Defendant argued that this was not a proper class action, and that plaintiff had an adequate remedy at law. Judge Barrett denied the motion on November 15, 1972, finding that the class action on behalf of all purchasers from the defendant billed for transportation "BKPST TRANS — INS," rather than F.O.B., was proper and that the complaint stated a good cause of action.

On November 27, 1972, the State of Illinois was granted leave to intervene on behalf of the subclass of all public institutions which had purchased books from the defendant. On December 14, 1972, an order was entered consolidating the Barliant case with another class action, Avery Coonley School v. Follett Corp., No. 72 CH 3538, pursuant to a motion of counsel for the school. The motion to consolidate stated that both cases involved the same issues and subject matter, that both arose from the same transaction or series of transactions, and that each plaintiff is alleged to be a member of the same identical class. Defendant answered all three complaints.

Judge Barrett was then appointed to the appellate court, and the case was assigned to Judge Emmett F. Morrissey. Defendant then moved to vacate the order entered by Judge Barrett on November 15, 1972, and to dismiss the class action. The record indicates that argument on this motion was heard on November 24, 1975. No order was entered at that time, and the report of the proceedings at that hearing has not been included in the record on appeal.

Prior to entry of an order on the motion, plaintiff moved for a substitution of judges. Judge Morrissey refused to grant the petition and maintained that he would have entered an order on the defendant's motion following the hearing on November 24, 1975, but for the delay requested by the plaintiff. Judge Morrissey also maintained that he had indicated to counsel for the plaintiff on November 24, that he would rule in favor of defendant's motion, and that it would therefore be unfair to now grant plaintiff his motion for a substitution of judges.

On December 8, 1975, counsel for the plaintiff and for the defendant in the Coonley School case filed a stipulation requesting that the "intervening plaintiff" be dismissed, "all matters in controversy having been settled and adjudicated." The terms of the settlement were not disclosed by the stipulation. That same day Judge Morrissey entered an order, pursuant to the stipulation, dismissing the Coonley School as a party plaintiff.

On December 16, 1975, Barliant moved to vacate the order dismissing the Coonley School, alleging that it was dismissed in violation of section 52.1 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 52.1), dealing with the compromise or dismissal of class actions. Defendant responded to the motion, but the record does not indicate whether or not the court ever ruled on the motion.

On January 23, 1976, the Attorney General moved the court to approve a settlement agreement it had negotiated with defendant. The motion was brought under section 52.1 of the Civil Practice Act. *fn1 The settlement was approved by Judge Morrissey, and ...


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