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Schlenz v. Castle





APPEAL from the Circuit Court of Lake County; the Hon. CHARLES W. SCOTT, Judge, presiding.


On October 2, 1979, we filed our original opinion in this cause; on October 4, 1979, the supreme court announced its decision in Roth v. Yackley (1979), 77 Ill.2d 423, 396 N.E.2d 520, which we discuss later; on October 19, 1979, plaintiffs filed a petition for rehearing; on November 19, 1979, we granted rehearing, but the defendants thereafter did not file an answer to the petition as allowed by Supreme Court Rule 367(d) (Ill. Rev. Stat. 1977, ch. 110A, par. 367(d)). Having considered the arguments raised by plaintiffs on rehearing, we have withdrawn our original opinion and replaced it with this modified opinion.

This is an interlocutory appeal from an order denying plaintiffs' motion for a class determination and motion for partial summary judgment. The issues raised are: (1) whether class certification was properly denied; (2) whether the trial court erred by denying plaintiffs leave to substitute new counsel or new class nominees; (3) whether Public Act 80-1471 is valid; and (4) whether the trial court erred by refusing to stay the proceedings.

As to the first issue, plaintiffs seek certification of a class comprised of themselves and all other owners of single-family residential property in Illinois. They allege that the various defendants have, in a variety of ways, been in noncompliance with statutes regarding the assessment and equalization of real estate taxes with the result that there is a disparity in assessment between plaintiffs and owners of other types of real estate.

• 1, 2 On December 19, 1978, the trial court made a number of oral findings regarding the requirements of class certification set forth in section 57.2 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 57.2). The requirements are:

"Prerequisites for the maintenance of a class action.

(a) 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 of the fair and efficient adjudication of the controversy."

First, the trial court found that because there were probably "millions" of potential plaintiffs, the numerosity requirement was met, and we agree. Second, the court found that questions requiring individual proof predominated over any common questions of fact or law, noting that even if the named plaintiffs proved improper assessment as to their property, that would not establish in other proposed class members a right to recover (see Goetz v. Village of Hoffman Estates (1978), 62 Ill. App.3d 233, 378 N.E.2d 1276), because each other plaintiff would have to prove that the township assessor improperly assessed the property in his township. The court therefore properly concluded that the second requirement was not met. Third, the court found that the named plaintiffs knew essentially nothing about the suit and had simply told the attorney to do whatever he thought necessary. The turning over of complete control to the attorney in a class action has been cited as unacceptable because the attorney then becomes the de facto representative of the class, and this should be viewed as a conflict of interest. (In re Goldchip Funding Co. (M.D. Pa. 1974), 61 F.R.D. 592.) That the attorney for a class may not also be the class representative is now a per se rule in Illinois. (Barliant v. Follett Corp. (1978), 74 Ill.2d 226, 384 N.E.2d 316.) The third requirement was accordingly not met. Fourth, the trial court noted that because of the multiplicity of disparate and unrelated factual and legal questions involved, the fourth requirement was not met.

• 3, 4 The prerequisites of section 57.2 of the Civil Practice Act must be established by the proponents of the class action. (McCabe v. Burgess (1979), 75 Ill.2d 457, 389 N.E.2d 565.) McCabe also established that the standard of review in Illinois regarding the trial court's determination of whether the requirements for a class action have been met is a determination of whether the trial court abused its discretion. Based on the record before us, we determine that the trial court's findings that, as to the proposed class, the last three of the prerequisites were not met did not constitute an abuse of discretion. It is possible that plaintiffs may be able to show that a subclass exists (Ill. Rev. Stat. 1977, ch. 110, par. 57.3(b); Steinberg v. Chicago Medical School (1977), 69 Ill.2d 320, 371 N.E.2d 634) and on remand the trial court should, within its discretion, determine whether or not such a subclass can be shown.

The second issue involved the trial court's refusal to allow a substitution of class representatives or a substitution of attorneys for the class. Based on our holding above, that the trial court correctly ruled that the proposed class should not be certified, that a class action could not be maintained as alleged, and based on the reasoning of Goldchip and Barliant, we determine that if, on remand, the trial court should find that there is ...

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