                                                                      FIRST DIVISION
                                                                      JUNE 16, 2008




No. 1-07-0048



PRISCILLA ROSOLOWSKI, n/k/a Priscilla                                 )       Appeal from the
Kusiolek, et al.,                                             )       Circuit Court of
                                                              )       Cook County.
                       Plaintiffs-Appellants,                 )
                                                              )
       v.                                                     )       No. 95 L 14703
                                                              )
CLARK REFINING and MARKETING,                                 )       Honorable
                                                              )       Cheryl A. Starks,
                       Defendant-Appellee.                    )       Judge Presiding.

       JUSTICE ROBERT E. GORDON delivered the opinion of the court:

       Plaintiffs, who were residents of Blue Island, Illinois, living near an oil refinery owned by

defendant Clark Refining and Marketing, brought a nuisance class action against defendant

because of fumes and discharges from the refinery. After the entry of a multimillion dollar jury

award in favor of plaintiffs, the trial court decertified the class, vacated the award and ordered a

new trial. Plaintiffs appeal the interlocutory order. For the reasons discussed below, we vacate

the trial court’s posttrial order and remand for proceedings consistent with this opinion.

                                         BACKGROUND

       In October 1995, plaintiffs filed suit against defendant and others for claims arising out of

defendant’s operation of a nearby oil refinery, from 1993 until the refinery closed in 2001.

       On June 8, 2000, the Honorable Judith Cohen of the circuit court of Cook County granted
No. 1-07-0048


plaintiffs’ motion to certify the nuisance action as a class action. Although section 2-802 of the

Code of Civil Procedure permitted the circuit court judge to enter a “conditional” order of

certification, she did not do so. 735 ILCS 5/2-802(a) (West 2000). The June 8 order stated that

the nuisance class, which was also called “Class C,” consisted of all owners and lessees of real

property in Blue Island located “in the area between 135th Street on the south, 119th Street on the

north, Kedzie on the west, and Hoyne on the east.” Judge Cohen also certified a Class A, of

persons physically injured by exposure to catalyst released from the refinery on October 7, 1994;

and a Class B, of persons paying medical expenses for minor members of Class A. Classes A

and B are not at issue in this appeal. Only Class C is at issue.

       On January, 29, 2001, a second circuit court judge, the Honorable Albert Green, denied:

(1) defendant’s motion to reconsider the prior certification order; and (2) defendant’s motion, in

the alternative, pursuant to Supreme Court Rule 308. 155 Ill. 2d R. 308. Rule 308(a) permitted

the trial court to make a finding that its “order involves a question of law as to which there is

substantial ground for difference of opinion and that an immediate appeal from the order may

materially advance the ultimate termination of the litigation.” In denying the motion for

reconsideration, Judge Green stated from the bench: “[M]ost respectfully, I am going to accede to

Judge Cohen’s decision. I find nothing to reconsider. She considered it all.” In denying the

Rule 308 motion, Judge Green stated: “I don’t believe that the defendants have met the

requirements.”

       Shortly before trial, on October 19, 2005, the trial judge, Honorable Cheryl A. Starks,

became the third circuit court judge to approve class certification, when she denied another

                                                  2
No. 1-07-0048


motion by defendant for decertification. After a three-week jury trial in November 2005, the jury

rendered a verdict for the nuisance plaintiffs (Class C) and awarded $80 million in compensatory

damages. In addition, the jury specifically found that defendant had engaged in “willful and

wanton conduct” and awarded Class C an additional $40 million in punitive damages. The jury

also found in favor of Class A and B.

       On November 21, 2005, the trial judge, issued an order stating that “[j]udgment is hereby

entered” in favor of Class C and against defendant in the amount of $80 million, with an

additional award of $40 million for punitive damages. The order also entered judgment in favor

of Classes A and against Class B. On January 25, 2006, defendant filed posttrial motions

directed only against Class C. The motions included motions for judgment notwithstanding the

verdict, a new trial, decertification, remittitur of the compensatory award to $500,000 and

vacation of the punitive award.

       On November 3, 2006, almost a year after entering judgment for plaintiffs, the trial court

issued a 13-page opinion which: (1) granted defendant’s posttrial motion to decertify the class;

(2) vacated the jury’s awards of both compensatory and punitive damages; and (3) vacated

Judge Cohen’s order of June 8, 2000, certifying the class. 1

       At a hearing on November 17, 2006, the trial judge announced her decision to amend her

November 3 order, for the purpose of granting defendant’s motion for a new trial. At the



       1
           The last page of the November 3, 2006, opinion stated: “The court’s certification order

of June 8, 2000 is vacated.”

                                                  3
No. 1-07-0048


hearing, she stated that she was “granting a new trial because, again, the issue of these people’s

claims are still active and still live based on the law.” She also observed that this was “a case of

first [sic] impressions because generally, when cases are decertified they are decertified before

trial on the merits.”

        On December 8, 2006, the trial court issued a one-page amended order, which (1) vacated

the jury awards; (2) ordered “a new trial”; and (3) denied “[a]ll of Defendant’s other posttrial

motions.” The amended order did not refer to Judge Cohen’s order of June 8, 2000. Plaintiffs

had 30 days or until the beginning of January to appeal. 210 Ill. 2d R. 306(c).

        On January 5, 2007, plaintiffs filed a petition pursuant to Supreme Court Rule 306 (a)(1)

for leave to appeal the trial court’s posttrial orders. 210 Ill. 2d R. 306(a). On February 22, 2007,

this court granted plaintiff’s petition for an interlocutory appeal.

                                             ANALYSIS

        The decertification order vacated the judgement of two other circuit court judges about

class certification, nullified a jury’s verdict, and reversed the trial court’s own order confirming

class certification. As both parties in this case acknowledge, no other circuit court in Illinois has

ever decertified a class after the jury reached a verdict and the trial court formally entered

judgment on the jury verdict in a written order.

                                  Prerequisites for Decertification

        In essence, by decertifying, one circuit court judge sat in review of two other circuit court

judges’s decisions along with her own. A circuit court judge is allowed to do this only under

two, very limited conditions. First, there must be clearly changed circumstances. Barliant v.

                                                   4
No. 1-07-0048


Follett Corp., 74 Ill. 2d 226, 231 (1978); Key v. Jewel Cos., 176 Ill. App. 3d 91, 99-100 (1988)

(discussing and applying Barliant); Wernikoff v. Health Care Service Corp., 376 Ill. App. 3d 228,

231-33 (2007) (discussing and applying Barliant and Key). In Barliant, our supreme court

observed that “[b]oth sides in an action would benefit from an early determination of the

propriety of a class action.” As a result, our supreme court held that “a second judge” could set

aside a prior judge’s class certification only if warranted by “clearly changed circumstances, and

not mere feelings of error.” Barliant, 74 Ill. 2d at 231 (decertification reversed for lack of

“changed circumstances”); Key, 176 Ill. App. 3d at 99 (decertification affirmed, where

“substantial” amendments to the pleadings satisfied the requirement of changed circumstances);

Wernikoff, 376 Ill. App. 3d at 232 (decertification reversed, where additional “discovery did not

amount to changed circumstances”).

       Second, there must have been no decision on the merits. Section 2-802 (735 ILCS 5/2-

802(a) (West 2006)) of the Illinois Code of Civil Procedure states that a trial court’s class

certification order “may be amended before a decision on the merits.” 735 ILCS 5/2-802(a)

(West 2006). Defendant argues that the word “amended” does not include decertification, and

thus, the time limit in section 2-802 does not apply.

       However, our supreme court has held that it is section 2-802 which provides a trial court

with the authority to decertify a class. In Barliant, our supreme court found that decertification

was “within the scope of section 57.3,” which is the predecessor to section 2-802. Barliant, 74 Ill.

2d at 231. Our supreme court stated:

                “It may be beneficial to the orderly administration of justice for a

                                                  5
No. 1-07-0048


                second judge to set aside an earlier determination of a suitable

                class action if clearly changed circumstances, and not mere feelings

                of error, or more complete discovery warranted it; that is within the

                scope of section 57.3(a).” Barliant, 74 Ill. 2d at 231.

The defendant’s argument flies in the face of the above-quoted words of our supreme court.

Thus, the absence of a decision on the merits is the second prerequisite for decertification.

                                        Standard of Review

       An appellate court will reverse a trial court’s decision concerning class certification only

if the trial court abused its discretion or applied erroneous legal criteria. Health Cost Controls v.

Sevilla, 365 Ill. App. 3d 795, 805 (2006); Avery v. State Farm Mutual Automobile Insurance

Co., 216 Ill. 2d 100, 125-26, 135 (2005) (reversing trial court’s grant of plaintiffs’ motion for

certification, as an abuse of discretion). In the case at bar, we must reverse because the trial court

applied erroneous legal criteria. Namely, the trial court failed to make a finding about whether

there had been changed circumstances or whether the jury verdict was a prior decision on the

merits. In addition, to the extent that defendant argues that the trial court’s order represents an

implicit finding of changed circumstances, such a finding was an abuse of discretion.

                                      Changed Circumstances

       In the case before us, there were no “clearly changed circumstances” in the weeks

between when the trial court upheld certification on the eve of trial, and when it decertified the

class after trial. Barliant, 74 Ill. 2d at 231. The opinions in Barliant, Key and Wernikoff all

provide guidance concerning what constitutes “clearly changed circumstances.” Barliant, 74 Ill.

                                                  6
No. 1-07-0048


2d at 231; Key, 176 Ill. App. 3d at 99; Wernikoff, 376 Ill. App. 3d at 232.

       The “changed circumstances” requirement was first announced in Barliant, 74 Ill. 2d at

231. In that case, the representative plaintiff of the class became a partner in the law firm

representing the class, during the time between certification and decertification. Barliant, 74 Ill.

2d at 231. Our supreme court held that this change did not qualify as a “clear change of

circumstances.” Barliant, 74 Ill. 2d at 231. Instead of decertification, the proper course would

have been to disqualify the law firm and permit substitution of counsel. Barliant, 74 Ill. 2d at

231.   In Key and more recently in Wernikoff, this court had occasion to apply the “changed

circumstances” requirement. Key, 176 Ill. App. 3d at 99-100; Wernikoff, 376 Ill. App. 3d at

232-33. In Key, we upheld decertification, finding that the “substantially amended” pleadings

constituted the “changed circumstances” that Barliant required. Key, 176 Ill. App. 3d at 99-100

(discussing Barliant). In Wernikoff, we reversed decertification, finding that the additional

discovery did not amount to “changed circumstances” because the newly discovered facts

affected only “each class member’s possible recovery or ability to ultimately establish a cause of

action against defendant.” Wernikoff, 376 Ill. App. 3d at 232. This discovery “did not rise to the

level of such a change as in Key, where the pleadings were amended after class certification.”

Wernikoff, 376 Ill. App. 3d at 232-33.

       In the case before us, during the time between the trial court’s pretrial decision

confirming certification and its posttrial order reversing certification, there was no change in

party plaintiffs, their counsel, the pleadings or discovery. Defendant argued that there was a

change in both facts and law. Factually, defendant claimed “what Judge Starks only realized

                                                  7
No. 1-07-0048


after the trial was over – was that plaintiffs would not be able to prove either the existence of a

class-wide nuisance or damages.” However, defendant does not name any new facts presented at

trial that were not known from prior discovery. As our supreme court held in Barliant, “mere

feelings of error” are insufficient to justify decertification. Barliant, 74 Ill. 2d at 231. Legally,

defendant points to our supreme court’s decision in Avery v. State Farm Mutual Automobile

Insurance Co., 216 Ill. 2d 100 (2005), as marking a change in the law governing class action.

However, this decision was issued a couple of months before the trial court’s approval of

certification on October 19, 2005. Avery was decided on August 18, 2005. In addition, our

supreme court in Avery specifically stated: “we have not fashioned any changes to the legal rules

governing class actions, let alone ones that are ‘hostile’ to this procedural device.” Avery, 216

Ill. 2d at 154. Thus we are not persuaded by defendant’s claims of legally and factually “changed

circumstances” because they do not exist. Barliant, 74 Ill. 2d at 231.

                                        Decision on the Merits

        The trial court’s decertification order was also precluded by a “decision on the merits,”

namely the jury’s verdict and the trial court’s order entering judgment on the verdict. 735 ILCS

5/2-802(a) (West 2006). First, this court notes that the legislators chose not to add the word

“final” before the word “decision.” Thus a “decision on the merits” is something different than a

final judgment. When the Illinois legislature meant final judgment, it had no problem saying so,

as it did, for example, in section 5/8.1 of the Appellate Court Act. 705 ILCS 25/8.1 (West 2006)

(requiring “final judgments” before a party may appeal as of right to the appellate court).

Second, the drafters of the federal rules recognized that “decision on the merits” meant

                                                   8
No. 1-07-0048


something different from “final judgment” when they chose to change the federal class action

statute from the former phrase to the latter one. Fed. R. Civ. P. 23, Committee Notes on Rule -

2003 Amendments. The Illinois legislature has chosen not to make a similar change, so the

“decision” in the statute before us does not have to be “final” to have a limiting effect on the

power of the trial court.

       Defendant concedes in its brief to this court that “it is true that there was a ‘decision on

the merits.’ ” Defendant then argues that “when the class was decertified, there was no longer ‘a

decision on the merits’” and thus the trial court had the power to decertify. This argument is

bootstrapping.

       In sum, the trial court applied improper legal criteria by failing to consider whether there

had been changed circumstances and a decision on the merits. To the extent that its decision

represented an implicit finding of changed circumstances, the trial court abused its discretion.

Acting without changed circumstances and after a decision on the merits, the trial court simply

lacked the statutory authority to issue the order that it did. As a result, this court must vacate the

decertification order.

                                      Other Orders and Issues

       Since the orders granting a new trial and vacating the judgment on the jury verdict were

based exclusively on the decertification decision, those orders must be vacated as well. 210 Ill.

2d R. 306(a) (“If the petition for leave to appeal an order granting a new trial is granted, all

rulings of the trial court on the posttrial motions are before the reviewing court without the

necessity of a cross-petition”). The trial court ordered a new trial solely because it decertified.

                                                  9
No. 1-07-0048


Decertification was ordered on November 3, 2006. A couple of weeks later, at a hearing held on

November 19, the trial court decided to amend its prior order and grant new trials. The trial court

ordered new trials, in order to make clear that even after decertification, the individual claims

were alive and well. The trial court stated: “I’m granting a new trial because, again, the issue of

these people’s claims are still active and still live based on the law.” (Emphasis added.)2 On

appeal, plaintiffs3 and defendant4 agree that the new trial order was based solely on

decertification. Since the new trial order was based solely on decertification, once the



        2
            The dissent disputes that the trial court’s new trial ruling was based solely on

decertification, since the trial court stated that the new trial was granted because the claims of the

individual class members were “still alive.” The point was that the claims were still alive, even

after decertification.
        3
            In its petition for leave to appeal, plaintiffs stated that the trial court “ordered a new trial

based solely on the decertification ruling.”
        4
            Defendant agreed that the purpose of the new trial order was simply to preserve

plaintiffs’ individual claims after decertification. In its appellate brief, defendant explained:

“Because it found that individual issues predominated, *** the court decertified the class.

[Defendant] Clark suggested that the court should enter judgment against the named plaintiffs

because they had chosen not to ask for individual verdicts. The court rejected that alternative,

granting the named plaintiffs a new trial based on their individual claims and allowing former

class members to intervene to try individual nuisance claims.”

                                                      10
No. 1-07-0048


decertification order falls, so does the new trial order..

        It is important to understand what we are, and what we are not deciding in this opinion.

We are not reviewing certification. This case came to us, not on a direct appeal, but on a petition

from an interlocutory order. Bishop v. We Care Hair Development Corp., 316 Ill. App. 3d 1182,

1189 (2000) (on the appeal of an interlocutory order, reversal is required only if trial court abused

its discretion in granting or denying “the requested relief”). We granted the petition to hear a very

limited question: the propriety of an interlocutory order decertifying a class after a jury verdict.

And that question is easy to answer. The trial court simply had no authority to decertify. The

two requirements were not met. There were no “clearly changed circumstances” (Barliant, 74

Ill. 2d at 231) and there was a prior “decision on the merits” (735 ILCS 5/2-802(a) (West 2006)).

Thus the trial court’s interlocutory order was invalid. To hold otherwise would require us to

ignore both supreme court precedent and a statute, which obviously we cannot do.

        Our decision today has no preclusive effect, except on the question of whether the trial

court had the authority to decertify. Our supreme court has held that the denial of a petition to

file an interlocutory appeal has no preclusive effect because it does not represent a decision on

the merits. Kemner v. Monsanto Co., 112 Ill. 2d 223, 241 (1986), discussed with approval in

Stephens v. Taylor, 207 Ill. 2d 216, 229-30 (2003) (Freeman, J., specially concurring) (denial has

no “preclusive effect” because it is not a decision on “the relative merits”).5 Since our opinion



        5
            An earlier supreme court case, Robbins v. Professional Construction Co., 72 Ill. 2d 215

(1978), reached the opposite conclusion from Kemner. However, the appellate court stated that

                                                   11
No. 1-07-0048


today is a decision on the merits of the interlocutory order only, our opinion does not have a

preclusive effect on other issues, which may be raised later on direct appeal.

        In addition, defendant’s decision to request a new trial does not bar it from raising on

direct appeal any claimed trial errors. In Stephens, our supreme court held that when a party

moved for a new trial and that motion was granted, the party’s “tactical decision to request a new

trial foreclosed appellate review of all claimed errors in the first trial.” Stephens, 207 Ill. 2d at

224. In other words, if you ask for a second trial and you receive it, you cannot complain about

the first one. However, in the case at bar, since defendant is not receiving a second trial, it can

still complain about the first and only trial and can still attack the certification of the class, on

direct appeal.

        The dissent does not challenge our rulings on the issues that we decide today: that there

were no changed circumstances, that there was a decision on the merits, and that the trial court

thus lacked authority to issue its decertification order. The dissent would have us review the

pretrial certification orders and other issues raised in the posttrial motions. There is a good

policy reason for us not to review the pretrial certification orders. It is the same policy reason

that underlies the Illinois Supreme Court’s requirement of “clearly changed circumstances” and

the Illinois statute’s requirement of no decision on the merits. Barliant, 74 Ill. 2d at 231; 735



“the Kenner opinion overruled Robbins sub silentio.” Craigmiles v. Egan, 248 Ill. App. 3d 911,

918 (1993), discussed with approval in Stephens, 207 Ill. 2d at 229-30 (Freeman, J., specially

concurring).

                                                   12
No. 1-07-0048


ILCS 5/2-802 (a)(West 2006). Namely: law of the case. At this late date, after everyone has

relied on these certification rulings for years, it makes no sense to take the case away from the

plaintiffs in the end zone – to rob them of even the opportunity of offering a plan to apportion

damages. We are a court of review. It is not up to us, in the first instance, to imagine what plan

the litigants and the trial court will work out. However, we will review it when we are asked to

do so.

         We are aware that Rule 306(a) gives us the authority to review “all rulings of the trial

court on the posttrial motions.” 210 Ill. 2d R. 306(a). There is no mandatory requirement in the

rule that we engage in that review under all circumstances. While the Illinois Code of Civil

Procedure requires a trial court to “rule upon all relief sought in all posttrial motions,” no such

requirement is placed upon an appellate court. 735 ILCS 5/2-1202(f) (2006). In the case at bar,

the trial court’s attention was focused almost entirely on the class decertification issue. In fact,

the trial court’s memorandum order states: “in light of the Court’s ruling as to Class C

Certification, the remaining issues raised by defendant are moot.”

         Our reluctance to go further than we have in this opinion does not reflect an

unwillingness to decide issues that must be decided. We simply conclude that the fair and

orderly administration of justice requires that in this case we review important issues that have

been thoroughly and seriously litigated and considered. That has not happened yet. The record

below is not adequate.

         We share the dissent’s concern for the age of the litigation and the costs to the parties, but

we cannot allow that concern to distract us from our duty to decide issues when they are ready for

                                                  13
No. 1-07-0048


decision.



                                          CONCLUSION

       For the reasons stated above, the trial court’s posttrial orders are vacated, the judgment on

the verdict is reinstated, and this case is remanded for further proceedings consistent with this

opinion.

       Reversed and remanded with instructions.

       CAHILL, P.J., dissents.

       WOLFSON, J., concurs.




                                                 14
1-07-0048


        PRESIDING JUSTICE CAHILL, dissenting:

        I respectfully dissent. In what will undoubtably result in a second appeal, the majority has

remanded the cause to the circuit court for further proceedings, presumably to reinstate the jury

verdict and enter a final and appealable order. According to the majority, defendant will then have

an opportunity to appeal the original certification order, as well as all other issues raised in

defendant's motion for judgement notwithstanding the verdict or for a new trial.

        Plaintiffs filed their notice of appeal under Supreme Court Rule 306(a)(1) (210 Ill. 2d R.

306(a)(1)), which allows interlocutory appeals from orders granting new trials. It used to be the law

in this state over 40 years ago that, on appeal from an order granting a new trial, the reviewing court's

jurisdiction was limited to deciding only whether the trial court abused its discretion in granting the

new trial. See Keen v. Davis, 108 Ill. App. 2d 55, 64, 246 N.E.2d 467 (1969). This limitation on

our jurisdiction ended in 1970, when subparagraph (2)(v) was added to paragraph (b) of Rule 366.

See 134 Ill. 2d R. 366, Committee Comments, at 320 (subparagraph (2)(v) was added to abrogate

the ruling in Keen). Subparagraph (b)(v) read: "If a petition under Rule 306 for leave to appeal from

an order allowing a new trial is granted, all rulings of the trial court on the post-trial motions are

before the reviewing court, notwithstanding the absence of a final judgment." 134 Ill. 2d R.

366(b)(2)(v). The committee comments explain that once an appeal from an order granting a new

trial has been allowed, "the whole case is before the reviewing court, and efficient judicial

administration is advanced by disposing of all questions presented by the record." (Emphasis

added.) 134 Ill. 2d R. 366, Committee Comments, at 320.

        Rule 306 was amended at the same time to eliminate the necessity of a cross-appeal: "If the

                                                   15
1-07-0048


petition for leave to appeal an order granting a new trial is granted, all rulings of the trial court on

the post-trial motions are before the reviewing court without the necessity of a cross-appeal." 134

Ill. 2d R. 306(a)(2); see also 134 Ill. 2d R. 306, Committee Comments, at 255. Subparagraph (2)(v)

of paragraph (b) of Rule 366 was deleted in 1994 as duplicative of Rule 306. See 155 Ill. 2d R. 366,

Committee Comments, at clxi ("[p]aragraph (b)(2)(v) is deleted because Rule 306 contains a

substantively identical provision"). The rule as it exists today is: "If the petition for leave to appeal

an order granting a new trial is granted, all rulings of the trial court on the posttrial motions are

before the reviewing court without the necessity of a cross-petition." (Emphasis added.) 210 Ill. 2d

R. 306(a). The majority quotes this language (slip op. at 9) and then proceeds to ignore it.

        Rather than beginning with the trial court's order granting a new trial, the majority first looks

to whether the trial court had authority to decertify the class when it did. Plaintiffs' petition for leave

to appeal was not filed under subparagraph (a)(8) of Rule 306 (210 Ill. 2d R. 306(a)(8)), which

provides for an appeal from an order granting or denying class certification. The first line of

plaintiffs' petition for leave to appeal reads: "Pursuant to Illinois Supreme Court Rule 306(a)(1),

Plaintiffs respectfully petition this Court for leave to appeal from the order of the Circuit Court of

Cook County, entered on December 8, 2006, granting a new trial." (Emphasis added.) Although

the underlying rationale supporting the trial court's decertification was related to the rationale

supporting a new trial, the orders themselves are distinct and require separate analysis.

        The trial court's December 8, 2006, order denied plaintiffs' motion to reconsider the order of

November 3, 2006. That order vacated the jury verdict and granted a new trial. The December 8

order, the subject of this appeal, incorporated the trial court findings contained in the November 3


                                                    16
1-07-0048


order. In reaching those findings, the court began by addressing each of the five issues defendant

raised in a posttrial motion challenging the jury verdict. Defendant asked for: (1) judgment

notwithstanding the verdict on the ground that plaintiffs failed to prove injury to the absent class

members; (2) decertification of Class C on the same ground; (3) a new trial based on alleged

misconduct and evidentiary rulings; (4) remittitur of the compensatory damage award; and (5)

vacation of the punitive damage award.

        The trial court began its analysis with defendant's argument that Class C should be decertified

because plaintiffs failed to prove injury to the absent class members. Defendant maintained

throughout the litigation that plaintiffs could not prove injury to the entire class though the testimony

of only a few class members who lived within the immediate vicinity of the refinery. The original

certification order, entered June 8, 2000, does not meaningfully address defendant's argument.

Without commenting on the obstacles to proving injury to the 6,000 individual class members within

the context of a nuisance action, the court held that "it is very doubtful that proof of causation and

individual damage determinations will become the object of most of the efforts of the litigants and

the court." The court did not further explain this act of clairvoyance. Defendant's motion for

reconsideration or, in the alternative, for Rule 308(a) certification to present the issue to the appellate

court, was summarily denied. See 155 Ill. 2d R. 308(a) (trial court may certify for immediate appeal

questions of law that involve substantial ground for difference of opinion and from which an

immediate appeal would materially advance the ultimate termination of the litigation).

        It was not until after trial that the problems inherent in plaintiffs' attempts to prove injury to

the absent class members became evident to the trial court. The trial court explained:


                                                    17
1-07-0048


                "It does not take an expert to conclude that those class members living nearest

         to the refinery suffered more damages than those who lived near the borders [of the

         class area]. Furthermore, plaintiffs have failed to prove that absent class members

         suffered a substantial interference with the use and enjoyment of their property. The

         border class members, who might have only suffered odors, were never identified.

         It would be unlikely that everyone living within the Class C area sustained the same

         amount of damages.

                *** This is a nuisance claim, which requires a showing of substantial

         interference with the use and enjoyment of [one's] property, which makes it a plaintiff

         specific issue. This particular claim would require individual analysis to determine

         whether there was a substantial interference with the use and enjoyment of each class

         member's property. At the very least, a determination would have to be made as to

         how different sections of the class area were affected."

The court held certification of Class C was improper on this ground and vacated the June 8, 2000,

order.

         Plaintiffs returned to court, seeking clarification of the November 3 order, which left

unanswered plaintiffs' posture following decertification. The court declined entering judgment

notwithstanding the verdict, holding there was sufficient evidence to support a finding for the

plaintiffs who testified to their injury at trial. As to the absent plaintiffs, the court held their claims

were still active and granted a new trial, giving the absent class members an opportunity to prove

injury. This was the basis for the December 8, 2006, order from which this appeal arose.

                                                    18
1-07-0048


        In my opinion, this court's first order of business is to decide whether the trial court abused

its discretion by granting a new trial on the ground that plaintiffs failed to prove injury to the absent

class members. Because no cross appeal is required to address other rulings made on defendant's

posttrial motion (see 210 Ill. 2d R. 306(a)), this court should then consider the remaining issues

briefed and argued by the parties on appeal, including whether: (1) judgment notwithstanding the

verdict should have been entered for defendant; (2) the trial court erred in decertifying the class after

judgment on the verdict was entered; (3) Class C should have been certified in the first instance; and

(4) the damage awards are supported by the evidence.

        In limiting the scope of review to whether the trial court had the authority to decertify the

class after judgment was entered on the verdict, the majority says "[w]e granted [plaintiffs' petition

for leave to appeal] to hear a very limited question: the propriety of an interlocutory order

decertifying a class after a jury verdict." Slip op. at 11. We did nothing of the sort. We have no

authority to limit arbitrarily our scope of review under Rule 306(a)(1) or ignore issues properly raised

by the parties.

        In a footnote, the majority quotes the statement made in plaintiffs' notice of appeal that the

trial court vacated the jury awards and ordered a new trial "based solely on the decertification

ruling." Slip op. at 10 n.3. This misstates the record. After finding that plaintiffs failed to prove

damages to the absent class members, the court said: "in the absence of case law to the contrary, this

[c]ourt will not enter judgment in favor of defendant but will order a new trial, if necessary, for those

individuals who filed claims because their claims are still active." The court made clear that its

decision to grant a new trial was based on a finding that the claims of the absent class members were


                                                   19
1-07-0048


"still alive." Otherwise, the court would have entered judgment notwithstanding the verdict.

Interestingly, the majority, in a subsequent footnote, acknowledges this but still maintains in the

body of the order that the trial court's order granting a new trial was based exclusively on its

decertification of Class C (slip op. at 10 n.4).

        Recognizing that there are other issues unresolved in this case, the majority suggests that its

opinion "has no preclusive effect, except on the question of whether the trial court had the authority

to decertify." Slip op. at 11. The majority cites Kemner v. Monsanto Co., 112 Ill. 2d 223, 241, 492

N.E.2d 1327 (1986), and the concurring opinion in Stephens v. Taylor, 207 Ill. 2d 216, 229-30, 797

N.E.2d 679 (2003) (Freeman, J., specially concurring), for the rule of law that the denial of a petition

for interlocutory review has no res judicata effect. The majority does not explain how Kemner and

Stephens, which apply when a Rule 306(a)(1) petition is denied, should also apply when the petition

is granted.

        In granting plaintiffs' petition for leave to appeal under Rule 306(a)(1), this court acquired

jurisdiction to consider not only the grant of a new trial, but also all other rulings on defendant's

posttrial motion. The majority has decided to limit the scope of review to the trial court's

decertification order--an order not directly appealed. As a result, the parties and the courts will have

to absorb the additional expense of a second appeal, not to mention the fact that this case is already

in its twelfth year of litigation and the rights and liabilities of the parties have not yet been decided.

It is for this reason that I dissent from the majority opinion.

        Although I limit my dissent to the majority's position that this court need not decide the

remaining issues raised by the parties in this appeal, I note that the majority has felt no need to

                                                   20
1-07-0048


address Smith v. Illinois Central R.R. Co., 223 Ill. 2d 441, 448, 860 N.E.2d 332 (2006). Decided

while this case was pending in the trial court, the court in Smith explains why the class action device

in unsuitable for claims such as the one brought by plaintiffs here. Smith, 223 Ill. 2d at 448-58 (and

cases cited therein); see also Georgia-Pacific Corp. v. Carter, 371 Ark. 295, --- S.W.3d --- (2007)

(application of rule cited in Smith to nuisance actions). Returning this case to the trial court without

guidance on how to address renewed motions for judgment notwithstanding the verdict or for a new

trial reveals the fault lines in the majority's analysis of the scope of our review when a petition for

leave to appeal under Rule 306(a)(1) is granted. No matter how the trial court rules on these

renewed motions, this case is certain to be back before us, raising the same issues that the parties

have already briefed and argued here.

       Finally, in response to this dissent, the majority has enlarged its rationale for reinstating a

$120 million jury verdict without reviewing the alleged errors that brought it about. The majority

now employs public policy to buttress its position that it need not, and should not, address the

substantive issues giving rise to this appeal. Notably absent from the majority's response is a

reaction to the observation that Kemner and the concurring opinion in Stephens have no relevance

in a case such as this one where a Rule 306(a)(1) petition is allowed.

       The majority says its decision to forego review of the original certification order rests on

sound policy, "[n]amely: law of the case." Slip op. at 13. The doctrine to which the majority refers

"applies in situations where questions of law were decided in a previous trial or a previous appeal,

so as to be binding on the trial court or appellate court in a subsequent proceeding." Rosner v. Field

Enterprises, Inc., 205 Ill. App. 3d 769, 806, 564 N.E.2d 131 (1990). It does not apply here. That


                                                  21
1-07-0048


plaintiffs relied on the original certification order in the face of two motions to reconsider and a

posttrial motion to decertify is unlikely given the experience of plaintiffs' counsel. See Catlett v.

Novak, 116 Ill. 2d 63, 68, 506 N.E.2d 586 (1987) (interlocutory orders can be reviewed, modified

or vacated at any time before final judgment).

       The majority continues its critique by acknowledging the scope of review under Rule

306(a)(1). Yet the majority, without citation to authority, claims there is no mandatory requirement

that an appellate court exercise full review. Here is where sound public policy comes into play.

"Implicit in entertaining any interlocutory order is the hazard that piecemeal appeals will burden the

efficacious administration of justice and unnecessarily protract litigation, thus inconveniencing the

parties with the costs and delay of separate appeals." In re Nissan Motor Corp. Antitrust Litigation,

552 F.2d 1088, 1094 (5th Cir. 1977), cited with approval in Burtell v. First Charter Service Corp.,

76 Ill. 2d 427, 435, 394 N.E.2d 380 (1979). To remand this cause to the circuit court for entry of a

final and appealable order so that the parties may file a new appeal raising the same issues that have

already been fully briefed here is a "drain of judicial resources." See People v. Morris, 135 Ill. 2d

540, 550-51, 554 N.E.2d 150 (1990) (failure of appellate court to consider sufficiency of the

evidence against a defendant before remanding for a new trial would likely result in a needless

second appeal). As our supreme court found in Nelson v. Union Wire Rope Corp., 31 Ill. 2d 69,

112-13, 199 N.E.2d 769 (1964), I believe there are "unique circumstances here which, as a matter

of discretion and justice, impel us to use our powers on review to the utmost and to finally dispose

of the case."




                                                 22
                  REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
                           (Front Sheet to be attached to each Opinion)

Please use the       ]
following form:      ]
                     ]      PRISCILLA ROSOLOWSKI, n/k/a Priscilla
                     ]      Kusiolek, et al.,
                     ]
                     ]                      Plaintiffs-Appellants,
                     ]              v.
                     ]
                     ]      CLARK REFINING and MARKETING,
                     ]
                     ]                      Defendant-Appellee.
                     ]
Complete             ]
 TITLE               ]
of Case.             ]

Docket No.           ]                   No. 1-07-0048
                     ]              Appellate Court of Illinois
COURT                ]              First District, First Division
                     ]
                     ]                   JUNE 16, 2008
Opinion Filed        ]              (Month, Day and Year)
                     ]

JUSTICES             ] JUSTICE ROBERT E. GORDON delivered the opinion of the court.
                     ]
                     ] CAHILL, P.J., dissents, WOLFSON, J., concurs.
                     ]

APPEAL from the      ] Lower Court and Trial Judge(s) in form indicated
Circuit Court        ] in margin:
of Cook County;      ] Appeal from the Circuit Court of Cook County.
the Hon:______       ]
1-07-0048


Judge Presiding   ] Honorable Cheryl A. Starks, Judge Presiding.

For APPELLANTS ]Indicate if attorney represents APPELLANTS or
John Doe of       ]APPELLEES and include attorneys of counsel.
Chicago.          ]Indicate the word NONE if not represented.
For APPELLEES,    ]-----------------------------------------------------------------------------------------------
Smith and         ]        Jenner & Block
Smith, of         ]        Chicago, Illinois 60601
Chicago.          ]        Attorneys for Appellants
Brown,            ]        Attn: Jerold S. Solovy; Benjamin K. Miller; Barry Levenstam;
of Counsel.       ]               Irina Y. Dmitrieva and April A. Ottenberg
                  ]               OF COUNSEL
                  ]
                  ]
Also add atty.    ]
for third party   ]        Mary Ann Pohl, P.C.
appellants        ]        Chicago, Illinois 60602
or appellees.     ]        Attorney for Appellants
                  ]        Attn: Mary Ann Pohl
                  ]               OF COUNSEL
                  ]
                  ]        Robert J. Wagner, P.C.
                  ]        Crystal Lake, Illinois 60014
                  ]        Attorney for Appellants
                  ]        Attn: Robert J. Wagner
                  ]        OF COUNSEL
                  ]
                  ]        Joseph Witkowski & Associates
                  ]        LaGrange, Illinois 60525
                  ]        Attorneys for Appellants


                                                     24
1-07-0048


                 ]
                 ]    Shea, Rogal & Associates
                 ]    LaGrange, Illinois 60525
                 ]    Attorneys for Appellants
                 ]    Attn: Gerald W. Shea and Ira Rogal
                 ]         OF COUNSEL
                 ]
                 ]    Mayer, Brown LLP
                 ]    Chicago, Illinois 60606
                 ]    Attorneys for Appellee, Clark Refining & Marketing, Inc.
                 ]    Attn: John C. Berghoff, Jr. and Michele Odorizzi
                 ]         OF COUNSEL
                 ]
___________________(USE REVERSE SIDE IF NEEDED_________________________________




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