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Schlenz v. Castle





Appeal from the Circuit Court of Lake County; the Hon. Robert K. McQueen, Judge, presiding.


JUSTICE UNVERZAGT delivered the opinion of the court:

This case returns to this court after previously having been affirmed in part and reversed in part and remanded by this court, and after this court's decision was affirmed in part, reversed in part and remanded by the supreme court. Schlenz v. Castle (1980), 80 Ill. App.3d 1131, aff'd in part, rev'd in part & remanded (1981), 84 Ill.2d 196.

The early procedural history of this case is aptly summarized in the supreme court's opinion, and is presented here as background for an understanding of the procedural posture of the instant appeal:

"Cause No. 53189 is another in a series of actions involving the alleged failure of the appropriate officials to equalize real property assessments in this State. See, e.g., Hamer v. Kirk (1978), 57 Ill. App.3d 335; Hamer v. Kirk (1976), 65 Ill.2d 211; Hamer v. Kirk (1976), 64 Ill.2d 434; Hamer v. Lehnhausen (1975), 60 Ill.2d 400; Hamer v. Mahin (1973), 13 Ill. App.3d 51; Hamer v. Mahin (1970), 47 Ill.2d 252; People ex rel. Hamer v. Jones (1968), 39 Ill.2d 360.

In their two-count first amended complaint filed in the circuit court of Lake County, plaintiffs Russell G. Schlenz and Nancy A. Schlenz named as defendants the Director of the Department of Local Government Affairs, the supervisor of assessments of Lake County, the Lake County board of review and certain Lake County township assessors. In count I plaintiffs, purporting to act as representatives of a class, sought, inter alia, an order declaring that a specified procedure utilizing `sales ratio studies' for assessment and equalization of realty be made applicable statewide for 1977 and subsequent tax years. Plaintiffs also sought an order declaring that the defendants must comply with applicable provisions of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 482 et seq.) for 1977 and subsequent tax years. In count II plaintiffs sought injunctive relief to enforce the declarations prayed in count I of the complaint.

A `Supplemental Complaint' was filed `attacking the method of distributing state grants-in-aid' (see Hamer v. Dixon (1978), 61 Ill. App.3d 30), and the first amended complaint was further amended seeking to challenge the tax-exempt status of certain property in Lake County.

Citing Andrews v. Foxworthy (1978), 71 Ill.2d 13, plaintiffs filed a motion for partial summary judgment alleging that `there is no genuine issue as to any material fact relative to the failure of the defendants * * * to publish the real estate assessment lists for the 1977 tax year in Lake County until after December 15, 1977, except in Shields Township.' Plaintiffs also moved for a determination of their class as consisting of `all persons or entities owning improved real property used for single family residential purposes subject to taxation in the State of Illinois for the 1977 tax year and subsequent tax years.' Defendants filed a motion to deny, and an `objection to the motion' for determination of the class. The circuit court denied plaintiffs' motion for partial summary judgment and allowed defendants' motion and objection opposing the class certification. Pursuant to Supreme Court Rule 308(a) (73 Ill.2d R. 308(a)) the circuit court certified the issues of the propriety of a class action and the constitutionality of the statute.

The appellate court affirmed that portion of the order which denied class certification, held that section 318.1 was unconstitutional as an attempt to validate a void tax and as violative of the principle of the separation of powers (see Ill. Const. 1970, art. II, sec. 1), and remanded the cause for a determination of the existence of a subclass. 80 Ill. App.3d 1131, 1133-35; see Ill. Rev. Stat. 1979, ch. 110, par. 57.3(b)." Schlenz v. Castle (1981), 84 Ill.2d 196, 200-01.

The supreme court found no abuse of the circuit court's discretion in determining the plaintiffs were inadequate class representatives, and in refusing to certify the class. The court also approved this court's remand of the cause for a determination of whether a subclass may be found to exist. The court reversed this court's judgment, however, insofar as it held invalid (on the ground of unconstitutionality of section 318.1 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 799.1)) real estate assessments because of the defendants' failure to give timely notice as required by section 103 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 584).

On remand, the starting point of the factual background of the instant appeal, plaintiffs petitioned for a change of venue on the grounds of prejudice. The court denied that motion, as well as plaintiffs' motion to certify the question under the provisions of Supreme Court Rule 308 (87 Ill.2d R. 308).

Certain defendants — Robert Jasper, the supervisor of assessments for Lake County (supervisor) and the Lake County board of review (the board) — moved to dismiss the action because more than eight months had passed since the supreme court's mandate was filed in the circuit court, and no subclass had been proposed or certified. The defendants' motion to dismiss was denied, and plaintiffs were allowed 14 days to propose subclasses. Plaintiffs filed their motion for subclass determination proposing 13 subclasses.

According to the record, a hearing on the merits of this motion was held approximately six months later on March 17, 1983, and the plaintiffs' motion was taken under advisement. No decision on that motion appears in the record, nor does the record indicate plaintiffs requested a ruling thereon.

On April 5, however, the supervisor and the board moved to dismiss the individual claims of Russell and Nancy Schlenz for failure to exhaust their administrative remedies. The motion recited that it was brought "pursuant to section 2-615 and 2-619" of the Civil Practice Law. (Ill. Rev. Stat. 1983, ch. 110, pars. 2-615, 2-619.) Included in the record as an exhibit attached to the motion was a portion of Nancy Schlenz' deposition in which she states neither she nor her husband filed an assessment complaint with the Lake County board of review for the 1977 tax year. Also attached to the defendants' motion were affidavits of the docket clerk of the Lake County board of review averring that no assessment complaints had been made to the board of review concerning the Schlenz property for the tax years 1978 through 1982. The motion also included a renewed request that the court deny the certification of the proposed subclasses.

Several days later, the plaintiffs moved pursuant to section 2-407 of the Civil Practice Law (Ill. Rev. Stat. 1983, ch. 110, par. 2-407) and "in response to the motion to dismiss" to substitute "the Lake County Taxpayers' Association, Frank Rice, Stephen Rudisill and Donald C. Johnson as Plaintiffs and class representatives * * *." The court granted leave to file the motion and continued generally the defendants' motion to dismiss and the plaintiffs' motion to substitute.

Seven months later, the board and supervisor's notices of deposition for the three individuals proposed to be substituted were filed, and the defendants later filed a motion to compel the parties to appear for deposition, and the cause was continued to December 22, 1983, for hearing on any motions as to Rice and Rudisill, "proposed new party plaintiffs." The deposition of Mr. Rice was taken on December 8, and Mr. Rudisill's on December 20. The depositions were filed with the clerk of the court on December 22, and were bound in the common law record.

The court's order, dated December 22, 1983, dismissed the Schlenzes as individual plaintiffs, granted the motion to substitute, denied the motion to substitute Rice and Rudisill, and continued the cause generally as to Johnson. Plaintiffs moved for rehearing and vacation or modification of the court's order pursuant to section 2-1203 of the Civil Practice Law (Ill. Rev. Stat. 1983, ch. 110, par. 2-1203) or, in the alternative, that the court certify the cause under Supreme Court Rule 308 pursuant to their motion for certification incorporated therein. Plaintiffs requested a ruling on the motion to rehear, but the cause was continued for plaintiffs' submission of additional material in support of their motion to rehear, and for defendants' response thereto.

On March 6, the motion to rehear was denied. The order also dismissed Johnson "as a subclass representative based on plaintiffs' attorney's stipulation that Johnson has failed to exhaust his administrative remedies." The order also contained a Rule 304(a) finding (87 Ill.2d R. 304(a)), and plaintiffs' notice of appeal from the court's December 22 and March 6 orders was timely filed. In view of the court's Rule 304(a) finding, and the fact that the dismissals of the Schlenzes, Rice, Rudisill, and Johnson terminated their right to proceed as class representatives and as individuals, this court has jurisdiction to consider the issues raised.

The issues are (1) whether the lack of a finding as to the existence of a subclass was error; (2) whether the Schlenzes and proposed substitute plaintiff Donald C. Johnson were properly dismissed as individuals for failure to exhaust their administrative remedies; (3) whether the court erred in determining that Rice, Rudisill and Johnson were not adequate class representatives; (4) whether the court erred in dismissing the proposed substitute plaintiffs as individual plaintiffs; (5) whether notice must be given to members of the class where the class representative is not permitted to continue; (6) whether the court must supply a remedy where no statutory remedy is provided; (7) whether the court had jurisdiction to hear the matter on December 22; and (8) whether change of venue was improperly denied.


• 1, 2 In the first appeal of this cause, this court agreed with the circuit court that three of the four requirements for maintaining an action as a class suit under section 2-801 of the Civil Practice Law (Ill. Rev. Stat. 1983, ch. 110, par. 2-801) were not met (the "numerosity" requirement was met), specifically: (1) no common question of law or fact predominated over any question affecting only individual members; (2) the named plaintiffs (the Schlenzes) knew essentially nothing about the suit and the complete control of the cause which they had vested in their attorney (the same one then as now, Paul Hamer) made him the de facto representative of the class, and caused a per se conflict of interest under Barliant v. Follett Corp. (1978), 74 Ill.2d 226; and (3) the class action would not be an appropriate method for the fair and efficient adjudication of the controversy due to the multiplicity of disparate and unrelated factual and legal questions involved. Schlenz v. Castle (1980), 80 Ill. App.3d 1131, 1133.

In deciding a second issue raised there, this court found it was not error for the trial court to have refused to allow a substitution of class representatives or a substitution of attorneys for the class. Our opinion then provided:

"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 [In re Goldchip Funding Co. (M.D. Pa. 1974), 61 F.R.D. 529] and Barliant [Barliant v. Follett Corp. (1978), 74 Ill.2d 226], we determine that if, on remand, the trial court should find that there is a subclass to certify, there should be either a substitution of attorneys or of class representatives. Barliant." 80 Ill. App.3d 1131, 1134.

In Barliant, the propriety of a class action was at issue, and the court's opinion noted it was clear it was not being asked to determine whether a cause of action existed or not. (Barliant v. Follett Corp. (1978), 74 Ill.2d 226, 233-34.) It found the numerosity requirement was not in dispute there, and found that a common question predominated. However, the court noted that during the pendency of the litigation the named plaintiff had become a partner with the law firm that had been representing the plaintiff, and the class, from the start. The court determined that this created a per se conflict of interest which required disqualification of the firm as counsel. The court stated:

"Applying the rule to this case, we find the firm of Yaffe, Mark & Barliant must be disqualified. We must then remand to the circuit court with directions to require the substitution of independent counsel before the action may proceed further. Parenthetically, we do not believe it is sufficient to replace the named representative plaintiff with another class member, while retaining the same counsel, because this would permit an attorney to bring a suit to benefit his or her firm and later replace the representative party while protecting the firm's financial interest." 74 Ill.2d 226, 238.

Plaintiffs here now aver, with no citation of authority, that the court erred in not determining the existence of subclasses as required by this court's prior decision.

An action may be dismissed before consideration is given to whether to certify a class. (Landesman v. General Motors Corp. (1978), 72 Ill.2d 44.) In Landesman, the seminal case, the supreme court approved the view that where the plaintiff has no individual cause of action, it necessarily follows that any attempted class action also must fail. In Schlessinger v. Olsen (1981), 86 Ill.2d 314, the supreme court found it was clear from the Landesman decision that where the question of the certification of the class is the initial question raised, the question of whether a valid cause of action has been stated is necessarily subsumed in the certification question. (86 Ill.2d 314, 318.) The Schlessinger court found it was appropriate for the trial court to have decided the defendant's motion to dismiss because it would be expensive and wasteful of time and effort to permit discovery to proceed on the certification issue if the trial judge was of the opinion that no valid cause of action had been stated. Accordingly, Schlessinger held that where a motion to dismiss is made by a defendant, thereby placing in issue the sufficiency of a complaint, a trial court need not delay deciding the motion until the certification question has been resolved. See also Wheatley v. Board of Education (1984), 99 Ill.2d 481.

Plaintiffs assert that the Landesman decision is not in point because the court has already determined that the complaint states a valid cause of action, and cites Hamer v. Mahin (1973), 13 Ill. App.3d 51. We find nothing in that case, however, which supports plaintiffs' assertion. That case involved years 1967-1971, not tax year 1977 and subsequent years as involved in the case at bar.

The general rule is that on remand, the circuit court can take only such action which conforms with the judgment of the court of review (PSL Realty Co. v. Granite Investment Co. (1981), 86 Ill.2d 291), and the lower court has no power except to do that which it is directed. (People ex rel. Campo v. Matchett (1946), 394 Ill. 464; see also People ex rel. Daley v. Schreier (1982), 92 Ill.2d 271, 276-77.) However, the question of the sufficiency of the cause of action is necessarily subsumed in the question of whether a class may be certified, and where an individual's cause of action fails, any attempted class action must fail also. Accordingly, the trial court acted properly in deciding the defendants' motion to dismiss.

The facts shown by the record provide support for a finding that the trial court committed no error in that it was the plaintiffs' burden, not the court's, to propose the subclasses to be certified (Miner v. Gillette Co. (1981), 87 Ill.2d 7, 17-18, appeal dismissed (1982), 459 U.S. 86, 74 L.Ed.2d 249, 103 S.Ct. 484; McCabe v. Burgess (1979), 75 Ill.2d 457, 463-64; see also United States Parole Com. v. Geraghty (1980), 445 U.S. 388, 408, 63 L.Ed.2d 479, 498, 100 S.Ct. 1202, 1214-15), yet, plaintiffs took no action until ordered to do so nine months after the supreme court's mandate was filed in the circuit court. Further, it was plaintiffs who filed the motion for substitution of plaintiffs and class representatives, and plaintiffs never asked for a ruling on their motion to certify subclasses. It is axiomatic that the failure of a court to rule is not the same as a denial of a motion, and that the appellant may not complain of an invited error or one in which he acquiesced.

Accordingly, we conclude the trial court may not be charged with any error for the absence of a determination of whether a subclass exists.


• 3 Preliminarily, we note the defendants' "hybrid" motion to dismiss brought pursuant to both sections 2-615 and 2-619 is one which has been specifically disapproved and has been labeled the antithesis of "meticulous practice." (See, e.g., Bescor, Inc. v. Chicago Title & Trust Co. (1983), 113 Ill. App.3d 65, 66; Galayda v. Penman (1980), 80 Ill. App.3d 423.) Although such pleading practice has been described as error, it has not been held per se reversible error, although reversal will be required if prejudice results to the non-movant. Premier Electrical Construction Co. v. La Salle National Bank (1983), 115 Ill. App.3d 638, 642.

From the record presented here, which contains no reports of proceedings, it does not appear the plaintiffs objected to the form of the defendants' motion seeking the dismissal of the Schlenzes as individuals. It is unknown whether a formal motion of any kind was addressed to the dismissal of Johnson, since the trial court's order merely recites it was upon plaintiffs' counsel's stipulation that Johnson had not exhausted his administrative remedies. Plaintiffs did object to the defendants' oral motion to dismiss Rice and Rudisill on December 22, 1983, since their petition to rehear included that ground, and their memorandum of law included an attempt to provide supporting documentation to establish that Rice and Rudisill had exhausted their administrative remedies. In this regard, at least, plaintiffs may have been prejudiced not only by the failure to specify under which section of the Civil Practice Law ...

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