Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Daniel A. Covelli, Judge, presiding.
MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
In this case, the appellate court in effect held that plaintiff's alleged failure to state a cause of action in her complaint was not a bar to her prosecuting this cause as a class action. We disagree, and accordingly we vacate the judgments of the appellate and circuit courts> and remand the cause to the circuit court for further proceedings.
On August 14, 1972, Beverly Landesman, the named plaintiff in this putative class action, purchased a third-hand 1965 Chevrolet manufactured by the defendant, General Motors Corporation. At some point between August 14, 1972, and August 30, 1972, plaintiff brought her 1965 Chevrolet to Joe Jacobs Chevrolet Company, an authorized Chevrolet dealer, for service and was advised by agents of Joe Jacobs Chevrolet Company that the motor mounts on her vehicle should be replaced. Plaintiff ordered replacement of the mounts, for which Joe Jacobs Chevrolet Company (not General Motors) charged $41.30 for labor and parts. She filed suit "on behalf of all persons similarly situated and complaining of General Motors." Her complaint alleged two alternative theories of recovery, breach of warranty and strict liability in tort.
Defendant moved to dismiss plaintiff's complaint pursuant to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 45). Defendant argued that the complaint failed to state a cause of action and, alternatively, that a class action was not a proper means of proceeding in this case. The circuit court granted the motion, giving as its reason that the "allegations do not constitute proper grounds for a class action suit in Illinois."
The Appellate Court, First District, reversed. (42 Ill. App.3d 363.) The majority defined the issue before the court as "whether the complaint alleges proper grounds for a class action under the law in Illinois." (42 Ill. App.3d 363, 364.) It then went on to point out that "[t]here is no statutory law which governs class action in Illinois. Judicial authority controls." (42 Ill. App.3d 363, 365.) The majority then stated the common law requisites to a class action in Illinois as "(1) * * * common dominant and pervasive questions concerning members of the class; (2) * * * a class of plaintiffs too numerous to join in a single action; and (3) the named parties adequately represent all members of the class." 42 Ill. App.3d 363, 365.
The court found that the first and third requisites were satisfied in the instant case. (The existence of the second requisite was unchallenged.)
Defendant also argued that the judgment of the circuit court should have been affirmed on the ground that plaintiff's complaint failed to state a cause of action, but the appellate court refused to address this issue, stating:
"Defendant's brief raises the issue of whether the complaint states a good cause of action in warranty or strict liability, however, this issue is not included in either the trial judge's order or in the plaintiff's notice of appeal.
On appeal from a judgment or order of dismissal, questions necessarily involved in determining the propriety of the judgment or order, and only such questions, will be considered. [Citations.]
This opinion does not include a ruling on the issue of whether a cause of action on the merits was alleged, since such issue is not properly before us." 45 Ill. App.3d 363, 367.
Thus the appellate court in effect held that the existence of a cause of action was not subsumed in the requisites to a class action, and that defendant would have had to file a cross-appeal from the judgment of dismissal in order to bring the issue before the appellate court.
Mr. Justice Burman, dissenting, recognized the flaw in this reasoning, stating:
"Although the trial court in its order addressed itself solely to the propriety of the class action, I believe it nevertheless is necessary to examine the sufficiency of the complaint; for where the plaintiff has no individual cause of action, it necessarily follows that ...