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 judgment 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 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 (“[pjaragraph (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 (383 Ill. App. 3d at 426) 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 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:
“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.
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.” 383 Ill. App. 3d at 427. 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.’ ” 383 Ill. App. 3d at 427 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 “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 (383 Ill. App. 3d at 427 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.” 383 Ill. App. 3d at 427-28. 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 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 is 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, 265 S.W.3d 107 (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, “[njamely: law of the case.” 383 Ill. App. 3d at 428. 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 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, 551, 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, 113, 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.”