APPEAL from the Circuit Court of Cook County; the Hon. GEORGE
J. SCHALLER, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Plaintiff, Trudy Lee Hayna, filed an amended complaint in two counts on behalf of herself and all persons similarly situated who purchased Arby's roast beef sandwiches within the three years preceding. She alleged misrepresentation in the advertising, promotion and sale of the sandwiches. Count I claimed damages pursuant to the Consumer Fraud and Deceptive Business Practice Act (Consumer Fraud Act) (Ill. Rev. Stat. 1977, ch. 121 1/2, par. 261 et seq.). Count II claimed damages and injunctive relief pursuant to the Uniform Deceptive Trade Practices Act (Deceptive Practices Act) (Ill. Rev. Stat. 1977, ch. 121 1/2, par. 311 et seq.). Defendants moved to dismiss the amended complaint and plaintiff moved for certification of the class (Ill. Rev. Stat. 1977, ch. 110, par. 57.2). The trial court entered an order: (1) denying the motion to dismiss plaintiff's individual claim under count I; (2) dismissing plaintiff's claims under count II; (3) dismissing plaintiff's class action allegations with finding that a class action is not an appropriate method for adjudication of this controversy. Plaintiff appeals from the portions of the order granting dismissals. Defendants cross-appeal from the portion denying dismissal of the individual claim under count I and also the finding of predominant questions of fact or law common to the purported class. Defendants' motion to dismiss the appeal for lack of jurisdiction was taken with the case.
The issues presented for review are: (1) whether the appeal should be dismissed for lack of appellate jurisdiction; (2) whether a class action is an appropriate method for the fair and efficient adjudication of the controversy; (3) whether the trial court abused its discretion in finding that common questions of law or fact predominate over questions affecting only individual rights; (4) whether the trial court erred in failing to dismiss plaintiff's individual claim under the Consumer Fraud Act; and (5) whether plaintiff states a valid cause of action under the Deceptive Practices Act.
The amended complaint contains the following pertinent allegations:
Count I: The term "roast beef" has acquired a universally recognized standard of identity through custom and usage and is commonly acknowledged and understood to mean a single piece of meat cooked by dry heat. Defendants knew that the term "roast beef" has such a common and accepted meaning and therefore incorporated said term in its product name so as to induce consumers to believe that the meat in their sandwiches is sliced from a single piece of meat cooked by dry heat. Defendants have through extensive advertising misrepresented to the general public and plaintiff's class that "Arby's roast beef sandwiches" are in fact roast beef as the term is commonly understood. Plaintiffs, as consumers, have purchased these sandwiches believing that they contained roast beef as advertised by defendants. Between May and August of 1978, plaintiff requested, bargained for and purchased an "Arby's roast beef sandwich" believing that she had received a sandwich which was in fact roast beef. Subsequently, plaintiff discovered that defendants' advertisements and representations were false and that defendants' sandwiches were not roast beef but, in fact, a composition of beef chunks formed with a chopped beef binder and a solution of water, salt and chemicals to simulate roast beef. Defendants' use of a simulated roast beef substance constitutes a deliberate misrepresentation of material fact in violation of the Consumer Fraud Act. Plaintiff further alleges that the simulated roast beef is inferior in quality and is less expensive and desirable than roast beef. She asserts that if she and members of her purported class had known the material facts regarding the composition of defendants' sandwiches, they would not have purchased said sandwiches or would have required reduced prices.
She further alleges that defendants maintain records on all products which they sell throughout the State of Illinois and that said records are exclusively in defendants' possession and control and that information regarding the sale of defendants' products is easily and readily obtainable. Finally, plaintiff asserts that she and members of her purported class are entitled to recover the difference between the actual value of the simulated roast beef substitute and the value of the sandwiches had they in fact been roast beef, together with interest. Plaintiff prayed that the cause be certified as a class action, that a declaratory judgment be entered to the effect that defendants' advertising practices violated the Consumer Fraud Act, that defendants be required to account and compensate all members of plaintiff's class for the difference between the actual value of the total number of sandwiches sold by defendants and the value of said sandwiches had they in fact contained roast beef, that a receiver be appointed to collect and administer the damages awarded, and for such other and further relief as the court deems just and appropriate.
Count II: Plaintiff alleges, in addition to the foregoing, that defendants, through their advertising and promotional efforts, continue to intentionally and purposefully mislead members of plaintiff's class by misrepresenting that their sandwiches are roast beef in violation of the Deceptive Practices Act. That unless defendants' practices are enjoined, uninformed members of plaintiff's class will continue to purchase "Arby's roast beef sandwiches." Furthermore, unless defendants are enjoined, informed members of plaintiff's class who are aware of the pending litigation may continue or resume purchases of said sandwiches on the mistaken assumption that the pending proceedings have caused defendants to cease using the simulated roast beef substitute in their sandwiches. Plaintiff incorporates the relief requested in count I and also seeks injunctive relief to enjoin defendants from continuing their deceptive advertising and promotional practices.
Defendants moved to dismiss the amended complaint pursuant to sections 45 and 48(1)(i) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, pars. 45 and 48(1)(i)). Defendants alleged that the class allegations in the amended complaint failed to satisfy the statutory prerequisites of a class action, that plaintiff's individual allegations failed to state a claim upon which relief may be granted under either the Consumer Fraud Act or the Deceptive Practices Act and that even if plaintiff were entitled to recover damages, they would be de minimus. Plaintiff responded to defendants' motion and submitted a supporting memorandum to which defendants replied. Plaintiff moved for class certification. After a hearing, the order here on appeal was entered.
The first issue to be determined is whether this appeal has been properly taken so as to invoke our jurisdiction. Camp v. Chicago Transit Authority (1980), 82 Ill. App.3d 1107, 403 N.E.2d 704.
Defendants here by motion and in their briefs contend that the trial court's order dismissing plaintiff's class action allegations is an interlocutory and not a final order and therefore is not appealable. Defendants also argue that the court's dismissal of count II of plaintiff's amended complaint is not final because it merely dismissed one of multiple counts stating a single claim in several ways. Plaintiff maintains that the order dismissing her class action allegations is final, since it amounted to a final determination that the action could not be maintained as a class action. Plaintiff also argues that counts I and II of her amended complaint are predicated upon violations of two separate and distinct statutes and that, therefore, the dismissal of count II is final and appealable.
• 1 As the order in the instant case dismissed plantiff's claims under the Deceptive Practices Act and her class action allegations but permitted her to proceed individually under the Consumer Fraud Act, she seeks review of this order pursuant to Supreme Court Rule 304(a):
"(a) If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. Such a finding may be made at the time of the entry of the judgment or thereafter on the court's own motion or on motion of any party. The time for filing the notice of appeal shall run from the entry of the required finding. * * *." (Ill. Rev. Stat. 1977, ch. 110A, par. 304(a).)
However, it should be noted that the mere inclusion of the special finding required by Rule 304 in a trial court's order cannot confer appellate jurisdiction where the order is not in fact final. (Crane Paper Stock Co. v. Chicago & Northwestern Ry. Co. (1976), 63 Ill.2d 61, 344 N.E.2d 461; Prado v. Evanston Hospital (1979), 72 Ill. App.3d 622, 390 N.E.2d 1270.) An order is final if it either terminates the litigation between the parties on the merits or disposes of the rights of the parties in regard to the entire controversy or some definite part thereof. (Jursich v. Arlington Heights Federal Savings & Loan Association (1980), 83 Ill. App.3d 352, 403 N.E.2d 1260; Oak Brook Bank v. Citation Cycle Co. (1977), 45 Ill. App.3d 1053, 360 N.E.2d 458.) Only an order which terminates the litigation on the merits so that, if affirmed, the trial court has only to proceed with execution is a final order. (Johnson v. Northwestern Memorial Hospital (1979), 74 Ill. App.3d 695, 393 N.E.2d 712.) An order which leaves a cause still pending and undecided is not a final order. (Johnson v. Northwestern Memorial Hospital; Oak Brook Bank v. Citation Cycle Co.) Yet, whether a judgment is final depends somewhat on the purpose for which and the standpoint for which it is considered, since it may be final for one purpose and not for another. (Brauer Machine & Supply Co. v. Parkhill Truck Co. (1943), 383 Ill. 569, 50 N.E.2d 836.) Finally, the appealability of an order is determined by the substance as opposed to the form of the order. (Johnson v. Northwestern Memorial Hospital.
Defendants rely principally upon Petruchius v. Don Roth Restaurants, Inc. (1979), 79 Ill. App.3d 1071, 398 N.E.2d 1228, to establish that the dismissal of class allegations does not meet the requisite standard of finality. Petruchius, however, is distinguishable. That case involved the question of whether an order denying class certification was a final and appealable order. That court, noting that the trial court did not make any findings as to the common questions of law or fact substantially at issue in the action nor use any language that could be fairly construed as a compromise or dismissal of the cause as to the named plaintiffs, held that the order was no more or less than a denial of a motion to certify the proposed class — a ruling which under section 57.3(a) of the Civil Practice Act is subject to amendment prior to a decision on the merits. Petruchius further noted the availability of an interlocutory appeal pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1979, ch. 110A, par. 308) to resolve any issue relative to the maintenance or composition of a class at an early stage of the proceedings. See also Frank v. Teachers Insurance & Annuity Association of America (1978), 71 Ill.2d 583, 376 N.E.2d 1377.
Unlike Petruchius, the trial court did not merely deny plaintiff class certification but rather dismissed her entire class action allegations. Additionally, the trial court in the instant case did make explicit findings concerning the propriety of maintaining a class action pursuant to section 57.2 of the Civil Practice Act. Ill. Rev. Stat. 1977, ch. 110, par. 57.2.
While research fails to reveal any Illinois decision which discusses the distinction between a court's denial of class certification and its dismissal of class allegations, an examination of the ramification of the latter order demonstrates its finality. First, the denial of class certification merely holds the ultimate determination of class action status in abeyance until the evidence adduced at trial on the merits conclusively establishes the propriety or impropriety of class certification. (See generally Petruchius v. Don Roth Restaurants, Inc. (1979), 79 Ill. App.3d 1071, 398 N.E.2d 1228; Ill. Rev. Stat. 1977, ch. 110, par. 57.3.) On the other hand, numerous other jurisdictions have concluded that the practical effect of an order dismissing class allegations is to dismiss the action as to all members of the class other than plaintiff. It has been considered a final and appealable order because it denies the class the right to maintain the action and thus forecloses judgment for or against the class.
In 1975, the Pennsylvania Supreme Court held that an order dismissing the class aspect of a suit thereby putting the class members out of court is a final and appealable order. It reasoned that even though the plaintiff could, in theory, individually pursue the action further and the ousted class members could bring separate individual actions against the defendant, these alternatives do not alter the conclusion that the trial court's order put the ousted class members out of court for the purposes of the particular action. Bell v. Beneficial Consumer Discount Co. (1975), 465 Pa. 225, 348 A.2d 734; see also Lee v. Child Care Service Delaware County Institution District (1975), 461 Pa. 641, 337 A.2d 586.
In Daar v. Yellow Cab Co. (1967), 67 Cal.2d 695, 433 P.2d 732, 63 Cal.Rptr. 724, the California Supreme Court came to a similar conclusion. There the trial court sustained defendant's demurrer to the plaintiff's complaint, determined that plaintiff could neither maintain a class action nor state a cause of action in excess of $5000 and transferred the matter to the municipal court. On appeal, that court observed the rule that an order of dismissal is to be treated as a judgment for the purposes of taking an appeal when it finally disposes of the particular action and prevents further proceedings as effectively as would any judgment and held that the trial court's order was tantamount to the dismissal of the action as to all members of the class other than the plaintiff. Finally, it noted that if the propriety of the court's order could not be presently reviewed, it could never be.
• 2 Finally, in 1974, the Ohio Supreme Court, relying on Daar v. Yellow Cab Co., held that an order striking class allegations clearly affects a substantial right of the class which in effect determines the action by denying the class the right to maintain the action and by preventing a judgment either adverse or favorable to the class. (Roemisch v. Mutual of Omaha Insurance Co. (1974), 39 Ohio St.2d 119, 314 N.E.2d 386; see also Miles v. N.J. Motors (1972), 32 Ohio App.2d 350, 291 N.E.2d 758.) Here, the order appealed from dismissed and brought to an end the class action proceeding. The class members, other than plaintiff, were thereby put out of court and the action is discontinued as to them. The only action remaining before the court was the claim of plaintiff, individually but not as a class. Accordingly, we find that the trial court's order dismissing plaintiff's class action allegations is a final order as to one or more but fewer than all of the claims and is appealable pursuant to Supreme Court Rule 304(a) (Ill. Rev. Stat. 1977, ch. 110A, par. 304(a)).
Defendants also argue that the trial court's order dismissing plaintiff's Deceptive Practices Act count was not a final and appealable order in that plaintiff's amended complaint states the same claim seeking similar relief under alternative counts, only one of which was dismissed. Plaintiff maintains that each count is based on a separate and distinct statute and that the dismissed count seeks the additional relief not sought in the first count — namely, an order enjoining defendants from continuing their deceptive advertising and promotional practices.
Defendants' reliance on Prado v. Evanston Hospital (1979), 72 Ill. App.3d 622, 390 N.E.2d 1270, is misplaced. In that case plaintiff filed a six-count amended complaint. Counts I and II alleged specific acts of negligence against the defendant doctor and hospital while counts III and IV alleged a cause of action under the doctrine of res ipsa loquitur against the same defendants. Plaintiff appealed the trial court's dismissal of counts III and IV. On appeal, this court found that the first four counts were predicated on the same theory or basis of recovery — namely, negligence, and that res ispa loquitur was a rule of evidence and not a theory of recovery. Accordingly, this court found that since recovery under the four counts was based on negligence, the dismissal of the res ipsa loquitur counts did not determine the merits of a separate cause of action or terminate the litigation. Consequently, the appeal was dismissed. In the instant case plaintiff's claims are based on two separate and distinct statutes. Additionally, all the relief requested in count II is not included in her ...