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03/21/96 OSCAR MORTIMER v. RIVER OAKS TOYOTA

March 21, 1996

OSCAR MORTIMER, AND NATHANIEL OUTLAW, ON BEHALF OF THEMSELVES AND OTHER PERSONS SIMILARLY SITUATED, PLAINTIFFS,
v.
RIVER OAKS TOYOTA, INC. AND TOYOTA MOTOR CREDIT CORPORATION, DEFENDANTS-APPELLEES, (CHARLES W. HOLTON AND DOUGLAS MADER, OBJECTING CLASS MEMBERS, PLAINTIFFS-APPELLANTS).



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JENNIFER DUNCAN-BRICE, JUDGE PRESIDING.

Presiding Justice Hoffman delivered the opinion of the court: Cahill and S. O'brien, JJ., concur.

The opinion of the court was delivered by: Hoffman

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

The plaintiffs, Oscar Mortimer and Nathaniel Outlaw (class representatives), filed the instant class action against the defendants, River Oaks Toyota and Toyota Motor Credit Corporation, charging violations of the Federal Consumer Leasing Act and the Illinois Consumer Fraud and Deceptive Practices Act in the defendants' motor vehicle leasing practices. The appellants, Charles W. Holton and Douglas Mader, in addition to being class members in this action, also had individual actions pending in the circuit court against Toyota Motor Credit Corporation.

The class representatives executed a settlement agreement with the defendants on June 2, 1993. On June 30, 1993, the class representatives and the defendants filed a joint motion seeking: 1) conditional certification of the classes for settlement purposes and appointment of the class representatives' attorneys as class counsel; 2) preliminary approval of the settlement agreement of June 2, 1993; 3) approval of a class notice and an order that it be sent to the class members; 4) an order setting the deadline and manner under which class members could opt out of the class; and 5) a hearing date for final approval of the settlement. The joint motion came on for hearing on July 7, 1993, at which time the trial court granted the relief requested and, inter alia, ordered that notices, in the forms attached to the joint motion, be sent by first class mail to all potential class members at their last known addresses as reflected in Toyota's records and published in a national newspaper. Approximately 310,000 individual notices were mailed to potential class members on or before September 3, 1993, and the approved public notice was published in the national newspaper on September 7 and 8, 1993. Those notices set September 30, 1993, as the final date by which a class member could "opt out" of the class or file objections to the proposed settlement.

On July 13, 1993, counsel for Holton sent a letter to the defendants' attorneys stating that Holton " 'opts out' of the class action settlement agreement." However, on September 30, 1993, Holton and Mader filed a joint objection to the proposed settlement, arguing that it did not benefit the class, and that the notices to the potential class members were defective because they failed to specify what the potential class members were sacrificing if the proposed settlement were approved, and failed to advise the potential class members of the individual suits that Holton and Mader had on file. Holton and Mader requested that the court reject the proposed settlement. The objection further stated:

"In the instant case, Mr. Holton before notice of the proposed settlement was sent to class members sent correspondence indicating a desire to opt out. However, it has no effect in that it was premature. It occurred before notice of settlement was sent to class members. *** Though Messrs. Holton and Mader intervene to object to the settlement, they specifically reserve the right to opt out in the event they are considered a member of the class and to appeal any order in this case." (Emphasis in original.)

On November 23, 1993, after considering memoranda supporting and opposing the objections to the proposed settlement and hearing argument on the objection of Holton and Mader, the trial court entered its final judgment approving the class action settlement. That order, among other things, approved the settlement agreement; identified, by reference to a list filed of record on November 16, 1993, those potential class members who exercised their right to opt out of the class; excluded all persons identified on the list of "opt outs" from the certified class; and barred class members from instituting or prosecuting any other action involving any of the settled claims. The order contained the requisite findings for enforcement and appeal pursuant to Supreme Court Rule 304(a). 134 Ill. 2d R. 304(a).

Other than the letter of July 13, 1993, the record fails to reveal that either Holton or Mader ever attempted to opt out of the class prior to the entry of the judgment of November 23. Further, they are not among the persons listed on the opt-out list filed with the court on November 16, 1993.

After the entry of the order of November 23, 1993, Holton and Mader, individually and jointly, pursued a rather curious and unorthodox course of post-judgment practice leading ultimately to the instant appeal.

On December 22, 1993, Mader filed a notice of appeal from the November 23 order which was docketed in this court as No. 1-93-4593. While that appeal was pending, Holton and Mader filed several motions before the trial court seeking post-judgment relief. Specifically, on January 24, 1994, Holton and Mader filed a "Motion to Correct Record" contending that their names had not been included on the opt-out list and seeking an order finding that they had opted out of the class. On March 29, 1994, Mader filed a second motion to correct the record, requesting essentially the same relief sought in the January 24 motion.

On April 14, 1994, this court, on motion of Mader and the other appellants, entered an order dismissing the appeal docketed as No. 1-93-4593.

On April 25, 1994, the defendants moved to strike Mader's motion of March 29, 1994, contending, inter alia, that the filing of his notice of appeal divested the trial court of jurisdiction in the matter. On May 19, 1994, the trial court entered an order granting the defendants' motion and striking Mader's motion.

On June 17, 1994, Holton and Mader filed a pleading styled as a "Motion to Clarify" wherein they requested that the court clarify the basis of its order of May 19 and also requesting a ruling on Holton's motion. That motion was stricken on July 1, 1994, by reason of the movants' failure to appear. Holton and Mader again noticed their ...


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