## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Suprem e Court

Mashal v. Ci ty of Chicago , 2012 IL 112341

Caption in S upreme Court: GAZ I H. MASHAL
, I ndiv. and in Represe ntative Capac ity of All Those Simi larly Situated, Appellant, v. THE CI TY OF C HI CAGO et al.

, Appellee s.

Docke t No. 112341

Filed Dec ember 13, 2012

Held ( Note : Thi s sy ll abus

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by t h e Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) A “dec ision on the merits” prec luding dece rtification of a cla s s is

s o mething which, short of a final judgme nt involving reme d i es , establishes a rig ht to rec over in at least one class member by a complete deter mination of liability as to a claim based on the fac ts disclosed by the evidenc e.

Dec ision Under Review Appea l from the Appellate Court for the First District; hear d in that court

on appea l from t h e C i rc uit Court of Cook County
, the Hon. Stuart E. Palmer, Judge, pr esiding

.

J udg ment Appellate c ourt judg ment aff irmed.
Cause re manded.Counsel on

Appea l L eo M. Ble iman, Andre w P. L amis, Donald A. L eB oy er, Davi d A. Novoselsky

and B rian A. Schr oeder , all of Chicag o, for a ppellant.

Stephen R

. Patton, Corporation Counsel, of Chicag o (B enna Ruth Solomon, Myriam Z rec znyKaspe r and Suzanne M. L oose, of counsel), for a ppellees.

J ustices J USTI CE THOMAS delivere d the judg ment of the c ourt, with opinion. Chief J ustice Kilbride and J ustices Garman, Karmeier, Bur ke, and Theis

concur red in the judg ment and opinion.
J ustice Free man spec ially concur red, w ith opinion.

OP INION

¶ 1 This appea l arises from a class action l aw s u i t fi l ed in 2000 by plaintiff Gazi Mashal
ag ainst defe ndants, the City of Chicag o and various City officia ls in their officia l c apac ity

. The class was certified in 2002, but was dece rtified in 2008, when the circ uit court of Cook County determ i ned that a partial summary judgme nt order enter ed in 2005 resolved the

overr iding leg al issue, there by destroy ing the commonality require ment for a cl ass action beca use common questions no longe r predominate d over any questions aff ecting only individual members (735 I L CS 5/2-801 ( We s t 2 0 0 4)). There afte r, the circ uit court eventua lly

certified four questions for interlocutory revie w under I llinois Supreme Court Rule 308 (ef f. Fe b. 1, 1994). Those four questions hinge d on whether the 2005 ruling

, which g rante d partial
summary judgme nt on the leg al issue on which the case was premised, constituted a “dec ision on the merits” afte r which time the entry of a class dece rtification order would be
prec luded under section 2-802(a ) of the Code of Civil Procedur e (the Code) (735 I L CS 5/2- 802(a) (West 2004)). The appellate court answere d the four certified ques t i o n s in favor of the City . 408 I ll. App. 3d 817. We now affir m the appellate court.

¶ 2 BA CKGROUND ¶ 3 Ga z i M as h al i s a taxi driver in the City of Chicag o. I n September 2000, he filed t h e instant suit in the circ uit court of Cook County to challeng e the City ’s i s suance of “fly -by traff ic citations” or “fly ing tickets,” which is service of a ticket by mail, without first having attempted to serve notice at the scene of the parking or standing vio l at i o n b y h anding the ticket t o the driver or pl acing it on the offending vehicle. Mashal allege d that the C i ty and its police department have adopted a policy and prac tice of issuing fly -by traff ic ci t at i o ns “af ter the fac t, without the office r confr onting the driver.” He further alleg ed that the prac tice violates a state statute and a municipal ordinanc e requiring that when a Chicag o police office r or other authorized City employ ee observe s a vehicle parke d or standing in violation of any provision of the Municipal Code of Chicag o, an initial notice of the violation should

-2-be handed to the driver or aff ix ed to the vehicle, and a second notice should be mailed to the vehicle’ s reg istered owner

. See 625 I L CS 5/11-208.3(b)( 3), (b)( 5)(i) (West 2010); Chicag o Municipal Code § 9-100-30( b) (ame nded Fe b. 10, 2009), § 9-100-050( d) (ame nded Dec

. 7, 2005). Mashal re q u es ted injunctive relief

, along with damag es for himself and other taxi drivers who paid fin es o r i n curr ed other penalties and expenses in connec tion with fly -by traff ic citations during the 10 y ear s befor e the a ction was filed. ¶ 4 Mashal moved to cer tify as a class all Chicag o taxi drivers who wer e i s s u ed “f l y -by ” citations and, as a result, were subject to any of the following : penalties or fines; vehicle seizure; or suspension or revoc ation of a taxi chauf feur ’s license or driving p ri v i l eges. I n support of his motion, Mashal prese nted aff idavits of 30 purported class mem b e r s stating that they had rec eived fly -by traff ic citations. Cook County circ uit court J udg e Richard Siebel
enter ed a class certification order on J uly 25, 2002, finding that “a class should be certified
at this time.” I n so doing, J ud ge S i eb el d ef ined “fly -by citations” as a situation “whe re a police off icer or par king e nforc ement employ ee note s the number of the offe nding ta x icab without approa ching or confr onting the taxi cab driver, and a violation of notice is mailed to the taxicab licensee with a noted date , location, and time of violation.” ¶ 5 I n Marc h 2005, Mashal filed a m o t i o n fo r p ar t ial summary judgme nt on the City ’s “liability ” for issuing the citations. Mashal asked the court to decide the leg ality of the City ’s alleg ed practice of issuing f ly -by traff ic citations. Mashal a

rg ued that the C ity does i ndeed have a prac tice of issuing “fly -by s” and that such a prac tice violates provisions of the I llinois Vehicle C o d e an d the Chicag o Municipal Code. See id. I n support of his motion, Mashal attache d the af

fi d av i t of his attorney , L eo Ble iman, which asser ted that he was contempora neously filing t h e aff idavits of 211 taxi drivers and class members who wer e attesting that they

had re ceive d fly -by

citations. ¶ 6 I n J uly 2005, the City filed its own motion for summary judgme nt, as well as a re sponse to Mashal’s motion for partial summary judgme nt. In response to Ma shal’s arg uments, the City first arg ued that Mashal was misreading the applicable provisions of the I llinois Vehicle Code and the Chicag o Municipal Code

, an d that those provisions do not prec lude serving initial notices of violation by mail. I n any event, the City arg ued, the fac ts did not support the notion that there was in fac t a practice on the par t of t he C ity to issue fly -by citations. The City offe red counter evidenc e that the issuance of fly ing tickets was infreque nt, noting that L ieutenant Maure en McMahon testified in her deposition that she was the Chicago police department’s commanding office r of L oop traff ic. Acc ording to Lieutenant McMahon, she supervised 113 traff

ic control aides in downtown Chicag o, and the City ’s prac tice has been for traff ic control aides to hand violation notices to drivers or aff ix them to the car s, except wher e, as happens infreque ntly

, the driver become s confr ontational or drives aw ay befor e t h at ca n b e done, in which case notice is serve d by mail. This was also the prac tice of t h e Citybefor e she w as assig ned to her position i n November

2002. ¶ 7 T he C ity also raised a num ber of aff irmative defenses. I t arg ued that the put ative cla s s members were barr ed from litigating their claims beca use t hey failed to fir st challeng e the citations at the department of administrative hearings. The City also arg ued that the claims

wer e barr ed by res judicata

, collater al estoppel, the voluntary pay ment doctrine and failure to exhaust admini strative re medies.

-3-¶ 8 On Dec ember 9, 2005, J udg e Siebel g rante d Masha l ’s m o t i o n fo r p ar t i al s ummary

judgme nt and denied the City ’s motion for summary judgme nt. I n so doing, t h e j udg e char acte riz ed M as h al ’s motion as seeking a decla ration as to the leg ality of issuing fly -by tickets. He noted that the leg al question of whether the issuance of initial notice of parking

or standing violations by mail violates the statute or ordinanc e is a matter of first impression in I llinois

. He then found t hat bot h the provisi ons of t he st atute an d o rd i n an ce provide for “the same and only two methods for providing initial delivery to a purported violator.” The first method is by direc tly delivering the violation no t i ce o r co m plaint to the driver. The second method is by aff

ix ing the violation notice or complaint to the m otor vehicle t hat i s in violation of the law. The judg e conc luded: “Masha l’s motion for partial summary judgme nt is g rante d, the Court decla ring that the prac tice of sending a s ec o n d n o t ice prior to an initial notice being either hand delivere d to the driver or aff ix ed to the vehicle violates t h e p lain lang uag e of the Statute and Ordina nce.” Finally , the j udg e did not addre ss the question of whethe r the City in fac t had a pr actice of issuing fly -by citations, nor did he addre ss whether any fly -by citations had in fact been issued. I nstead, he stated that the “court makes no decla ration as to the rema ining issues for the rea son that g enuine issues of materia l fac t exis t as to the number of ‘fly -by ’ tickets issued by the Cityduring the re levant time per iod.” ¶ 9 I n September 2006, the Cityfiled a motion for partial summary judgme nt based on the contention that the cla ss claims wer e ti me-ba rre d, except those arising within the one-y ear limit at io n s period of section 8-101 of the L ocal Gover nmental and Gover nmental Employ ees Tort I mmunity Act (745 I L CS 10/8-101 (West 2006)) or, alterna tively

, within the five-y ear limit ations period of section 13-205 of the Code of Civil Procedur e (735 IL CS 5 / 1 3-205 (West 2006)). J udg e Siebel

, wh o h ad h andled the case up to this point, retire d and was repla ced by J udg e Stuart Palmer. J udg e Palmer found that the five-y ear statute of limit ations applied and he ld that all claims befor e September 13, 1995, wer e bar

red. ¶ 10 I n J anuary 2007, t h e C i t y m o v ed to dece rtify the class, arg uing that beca use of Judge Siebel’s resolution of the predominate leg al issue in the case , it beca me clea r that individual issues now p re d o m i n ate over common issues such that class certification was no longe r

war rante d. I n response , Mashal took the position that liability was no longe r an issue and that only damag es rema ined to be deter mined. Mashal relied upon the more than 200 aff idavits of the taxi drivers that he ha d submitt ed. ¶ 11 J udg e Palmer g rante d the City ’s motion to dece rtify the class in J uly 2008. He found that the cre dibilit y of Mashal’s aff idavits was seriously questioned by the City and that they wer e not undisputed, as L ieutenant McMah o n t estified that office rs wer e permitted to mail the notice of citation only when service o n t h e st ree t was frustrated, i.e.
, only afte r attempti ng to persona lly serve the taxi driver or aff ix the citation to the vehicle. J udg e Palmer found that J udg e Siebel’s Dec ember 2005 order was in esse nce a decla ratory judgme nt w ith r eg ard to t h e leg ality of an alleg ed prac tice. J udg e Palmer further found that plaintiffs’ repe at ed
arg ument that J udg e Siebel’s ruling fore closed liability was nothing more than “an eff ort to mischara cter ize” Siebel’s ruling

.

-4-¶ 12 J u d ge P al m er noted that J udg e Siebel’s Dec ember 2005 order did not addre ss thos e

instances wher e service was frustra ted by the driver, ei t h er when the driver beca me confr ontational or drove awa y when he saw the offic e r approa ching

. J udg e Palmer conclude d that the City was entitled to a trial for eac h and every ticket beca use it maintains that in 100% of the case s, the office r either unsucce ssfully attempted to serve the citation but was frustra ted by the driver, or the citation was in fac t aff ix ed to the vehicle, but it was remove d by the wind or some other ag ency

. The court noted that based on Mashal’s estimation of the 1 number of claimants, as many as 16,000 trials would have to be held to deter mine liability

. The court conclude d that as a result of chang ed circ umstances since the orig inal cer tification order

, commonality no longe r exis ts and class action is no longe r an appropr iate method for 2 the fa ir and e fficie nt adjudication of the c ontroversy

. ¶ 13 Mashal fi l ed a motion in the circ uit court under I llinois Supreme Court Rule 308 (ef f. Fe b. 1, 1994) to certify a singl e q u est ion for interlocutory revie w: whether J udg e Siebel’s De ce m b er 2005 order g ranting Mashal partial summary judgme nt was a “dec ision on t h e merits” such t h at a subsequent judge lacke d authority under section 2-802 of the Code to dece rtify the class. The circ uit court denied the motion. ¶ 14 Mashal then filed a motion for a supervisory order in this court. I n J uly 2009, this court
enter ed a supervisory order direc ting the circ uit court to certify the following four questions for a ppeal pur suant to Supreme Court Rule 308:
I

. What is a decision on the m erits unde r s ec t i o n 2 -802 of the C ode that would
prec lude the entr y

of a c lass dece rtification orde r?
I I

. Whether, in a class action challeng ing defe ndants’ prac tice of issuing parking

o r standing violations to taxi drivers and others by mail and without any p er s o n al

s er v i ce on the driver or place ment of the citation on the offe nding vehicle, a prio r judge ’s ruling that the defe ndants’ “pra ctice of sending a second notice of a parking

or standing violation prior to an initial notice being either hand delivere d to the driver of the vehicle or aff

ix ed to the vehicle is violative o f t h e p l ai n lang uag e of the
opera tive statute and the ordinanc es” constitutes a deci s i on on the merits under section 2-802 of the Code such that a subsequent judge presiding in the case lacks the authority to dece rtify

the class.
I I I

. Whether, in a class action challeng ing defe ndants’ prac tice of issuing parking

T he Cit y al so ar gued tha t the dri vers the ms e l ves m ay have re cei ved the ti ckets at the 1 si te —e it her in han d or af

fi xed to the ir vehicl es— but the n si m ply thr ew the ti ckets away, or si m ply for got abo ut the m and la te r cl ai m ed tha t the y wer e never ori ginal ly ser ved at the sce ne. Addi ti ona ll y, the Cit y ar gued tha t the m ai l not ic e it sel f was not pro of tha t a fl y- by si tua ti on had occ urr ed bec aus e the ord i n a n c e c a l ls for fol low-up m ai l not ic e af te r the ini ti al ser vice. T hus

, the re is no way to dis ti nguish fr om the fa ce of t h e n oti ce it sel f whet her the m ai l not ic es tha t the dri vers pro duc ed in thi s c ase wer e t he f

ir st not ic e t hat th e dr iver act ual ly re cei ved of his viola ti on.

Lie ute nan t Mc Ma hon’ s dep osi ti on te st imony —t hat the onl y ti m e the se ci ta ti ons ar e ser ved 2 by mail in the fi rs t ins ta nce is when se rvice is fr ust ra te d—wa s giv en thr ee years af te r the ori ginal

cer ti fi cat ion or der

.
-5-or standi n g v i o l ati ons to taxi drivers and others by mail and without any persona l

s er v i ce on the driver or place ment of the citation on the offe nding vehicle, a pri o r judge ’s ruling that denied the defe ndants’ motion for partial summary judgme nt on the application of their aff irmativ e defe nses of failure to exhaust administrative

reme dies, res judicata

, the collater al attack doctrine, and the voluntary pay ment doctrine constitutes a decision on the merits under section 2-802 such that a subsequent judg e pre siding in the c ase la cks the authority to dece rtify

the class.
I V. Whether, in a class action challeng ing defe ndants’ prac tice of issuing parking

o r standing violations to taxi drivers and others by mail and without any p er s o n al service on the driver or place ment of the citation on the offe nding vehicle, a judge ’s ruling that g rante d in part the defe ndants’ motion for s u m m ar y judgme nt on the application of the statu t e of limit ations constitutes a decision on the merits under section 2-802 suc h that the judg e lac ks authority to dece rtify

the class.
This court also direc ted the appellate court to acc ept the ap peal and to answe r the four

certified questions. The circ u it c o u rt subsequently certified those questions, and the appellate
court a llowed the appe al and a nswere d the questions. ¶ 15 Wit h respe ct to the first question, the appellate court deter mined that for a decision to be “on the merits” under section 2-802, there must be a “complete deter mination of liability on

a claim, based on the fac ts disclose d by the evidenc e,” but note d it is something less than a final judgme nt requiring a deter mination of reme dies. 408 I ll. App. 3d at 819, 822-24. As to the second question, the court held that while the predominant leg al issue had been decide d, J udg e Palmer made clea

r that there still rema ined “the deter mination of the highly contested issue of whether any of these citations, or at least which of these citations wer e issued in this

manner .” Id. at 825. Therefor e, the g rant of pa rtial summary

judgme nt in favor of pl aintiff Mashal was not a decision on the merits and did not prec lude dece rtification. As to the third question, the appellate co u rt h eld that the circ uit court did not enter a “dec ision on the merits” beca

use the court made no fi n d i n g of liability

. Id. at 826. The appellate court explained that the ruling deny ing the C ity ’s summary judgme nt motion mere ly remove d

certain aff irmative defe nses, but still allowed the City to defe nd eac h claim on the merits. Id. As to the fourth question, the appellate court held that beca use the partial summary judgme nt ruling on the statute of limitations did not deter mine liability as to the re maining me mbers of the c lass, there was no de cision on the merits. Id. at 827. ¶ 16 Mashal filed a petition for leave to appea l (I ll. S. Ct. R. 315 (ef f. Fe b. 26, 2010)), which this court g rante d.

¶ 17 ANAL YSI S ¶ 18 At the outset, we note that Mashal did not ask the circ uit court to certify the issue of the propriety of the dece rtification order under Supreme C o u rt Rule 308, nor did he ask this
court to order cer

tification of that issue when he reque sted a supervisory order from this court that led to our certification of the four questions noted above. Nor does Mashal now ask this
court to a ddress the propriety of the de certification order in this appeal. I nstead, he asks us to enter a supervisory order direc ting the app el l at e co urt to consider the propriety of the

-6-dece rtification order

. For the rea sons noted later in this opinion, we deny Mashal’s reque st

for a supervisory order that would order the appellate court to addre ss that question at this stag e.

¶ 19 I . Def inition of “Dec ision on the Merits” ¶ 20 We turn now to a re s o lution of the four certified questions. At the heart of the appe al befor e this c ourt is the meaning of the phrase “dec ision on the merits” contained in se ction 2-802(a ) of the Code . That sec tion provides as follows: “(a ) Determination of C lass. As soon as practicable afte r t he commencement of an action broug ht as a class action, the court shall deter mine by order whether it may be so maintained and de scribe those whom the court finds to be members of the class. This order may be conditional and may be amende d before a decision on the merits .” (Emphase s added.) 735 I L CS 5/ 2-802(a ) (West 2004).
As the appellate court corr ectly noted, the Code does not define t h e term “dec ision on the

mer its” (see 735 IL CS 5/1-101 et seq. (West 2004)), and no prior I llinois case has specific ally

define d the term in the c ontext of sec tion 2-802. ¶ 21 The construction of a statute is a question of l aw that this court reviews de novo

. In r e C.C. , 2011 I L 111795, ¶ 29. The primary g oal of our review is to asce rtain and g ive ef fec t to the leg islature’s intent. Id. ¶ 30. I n deter mining that intent, we may proper ly consider the lang uag e of the statute, the rea son and nece ssity for the law, the evils soug ht to be reme died and the statute’s ultimate aim. In re Detention o f Lieberman

, 201 I ll. 2d 300, 308 (2002). Moreove r, when a term contained in a statute has not been define d by the leg islature, we may employ a dictionary definition to a scertain its meaning

. People v. Comage
, 241 I ll. 2d 139, 144 (2011). ¶ 22 Bla ck’s L aw Dictionary define s a “judgment on the m erits” as “[a] judgment base d on the evidenc e rathe r than on technica l or proce dural g rounds.—Also termed decision on the merits .” Bla ck’s L aw Dictionary 920 (9th ed. 2 0 0 9 ) (i t alics in orig inal). This definition is larg ely consistent with the definition that the appellate court ultimately settled upon: “ for a decision to be ‘on the merits,’ there must be a complete deter mination of liability on a claim based on the fac ts disclosed by the evidenc e.” 408 Ill. App. 3d at 824. ¶ 23 The parties ag ree that the law on wh at co n s t i t utes a “judg ment on the merits” for res judicata purp o s es i s rele vant to the deter mination of what constitutes a “dec ision on the merits” for purposes of section 2-802. I n that reg ard, Mashal relies on a few appellate court

case s that have held that a “judg ment is ‘on t he merits’ in the s ense that it may be pleaded
to bar a subsequent action wher e it amounts to a decision conce rning the rig hts and liabiliti es of the parties based on ultimate fac ts or fac ts disclosed by pleading s, evidenc e, or both, and

on which the rig ht of rec overy depends irrespe ctive of formal, technica l, or dilatory objections or contentions.” A.W

. W endell & Sons, Inc. v. Qaz i
, 2 5 4 I ll. App. 3d 97, 108 (1993); see also Fraley v. Boyd

, 83 I ll. App. 2d 98, 102 (1967); Lytton v

. Cole

, 54 I ll. App. 2d 161, 175 (1964). But we do not find this definition to be apprec iably differ ent from the

one the appellate court u l timately adopted. Both definitions would seem to require (to the
extent that it would make sense to extend the res judicata definition of “on the merits” to the

-7-class action context of section 2-802) that the decision addre ss the liabili ty of the defe ndant

based on the fac ts on which a rig ht of rec overy depends. At any rate , we do not f ind the res judicata definition to be deter minative of the outcome here

. ¶ 24 Be cause this court has not previously addre ssed this issue in the class action context and beca use our state class action statute is patterne d afte r Rule 23 of the Fe dera l Rules of Civil Procedur e (F ed. R. Civ. P. 23), we look to fede ra l l aw for g uidance

. See Smith v. Illinois Central R.R. Co.
, 223 I ll. 2d 441, 447-48 (2006). Simi lar to our state class- ce rtification statute, an ear lier version of fede ral Rule 23 allowed amendment and dece rtification befor e “the decision on the m erits.” See Fe d. R. Civ. P. 23, Commi ttee Notes on Rule—2003 Amendments. Th e advisory committee notes to fede ral Rule 23 explain that the provision

was amende d in 2003 to r eset the cutoff point at “fina l judgme nt” rathe r than “the decision

on the merits.” The commit t ee notes further explain that the chang e was made to avoid “possibl e am b i g uity ” because “[f]ol lowing a determination of l iability *** proce eding s to define the reme dy may demonstrate the need to amend the class definition or subdivide the class.” F ed. R. Civ. P. 23, C ommitt ee N otes on Rule—2003 Amendments. ¶ 25 Ba sed on the rea sons for the amendment to the fede ral rule, it seems clea r to us that both a “decision on the m erits” and a “final judgme nt” require at the very lea s t a determination of liability ; but, unlike a “dec ision on t h e m er its,” a “fina l judgme nt” also require s a deter mination of reme dies. See 408 I ll. App. 3d at 823. I n other words, the amendment made clea r that a “dec ision on the merits” under the prior version was considere d at the very least to be a “dete rmination of liability ,” and the amendment clar ified that certification could be amende d even afte r a liability deter mination, when the reme dy had not y et been deter mined. There is nothing in the lang uag e or leg islative history of fede ral Rule 23 to sug g est that befor e the 2003 amendment, a “dec ision on the merits” would include a judicial ruling that did not even decide whether a defe ndant would be liable to a single member of the putative class, or establish a definite rig ht to rec over on the part of the putative class repr esenta tive. ¶ 26 The two fede ral case s cited by Mashal that have a pplied the pre -ame ndment version of fede ral Rule 23 illust rate the kind of decision that would be considere d “on the merits.” See Vizcaino v. United States District Court for the W estern District of W

ashington

, 173 F.3d 713 (9th Cir. 1999); Scott v. City of Anniston , 682 F.2d 1353 ( 11th Cir. 1982). But neither

case is helpful to Mashal. I n both Vizcaino and Scott
, there was a complete deter mination of lia b i l i t y o n t h e facts and the l eg al t heory alleg ed that established a rig ht of recovery in the
repr esenta tives of the class. The only thing that r emained was for a calc ulation of damag es in Scott ( Scott
, 682 F.2d at 1358), an d in Vizcaino to assess damag es as well as some individual case s of elig ibilit y that did not require the district court and the parties to become entang led in “re solving the issue on a worke r-by -worke r basis” ( Vizcaino
, 173 F.3d at 717, 721, 724). ¶ 27 We also note that befor e the 2003 a mendments to fede ral Rule 23, a number of f eder al courts used the t erms “decision o n t he merits” and “final judgme nt” i nterc hang eably

. See,
e.g. , In re Gene ral Motors Corp. Pick- Up Truck Fuel Tank Products Liabil ity Liti gation
, 55 F.3d 768, 792 n.14 (3d Cir. 1995) (under Rule 23, “the court reta ins the authority to re- define

or dece rtify the class until the entry of final judgme nt on the merits”); Officers for Justice v. Civil Servic e Comm’n
, 688 F.2d 615, 633 (9th Cir. 1982) (under Rule 23, class action status

-8-is tentative befor e entry of final judgme nt); Alliance to End Repression v. Rochford

, 565 F.2d

975, 977 (7th Cir. 1977) (“district court has the power at any time be fore final judgme nt to revoke or alter class certification” under Rule 23). We note that fede ral decisions interpre ting the same lang uag e as is contained in o u r cl ass action statute are persua sive authority

. See Smith

, 223 I ll. 2d at 447-48. Thus, we might well conclude from these decisions that even i f a d ec i s i o n on the merits is not exactly a “fina l judgme nt” on the merits, it is at least something c lose to it. ¶ 28 Mashal claims that the appellate co u rt ’s d ef inition can only be met by entry of a fina l judgme nt that deter mines the liability of eac h and every class member. He claims that the appellate court’s holding “flies in the fac e” of the ruling in Rosolowski v. Clark Refining & Marke ting , 383 I ll. App. 3d 420, 426 (2008), wher e the court held that beca use the I llinois Ge n eral Assembly has not chosen to amend section 2-802 to contain the same “fina l judgme nt” lang uag e as the fede ral statute, a “dec ision on the merits” is something differ ent from a final judgme nt and there fore a decision does not have to be “fina l” to have a limit ing eff ect on the pow er of

the trial court under sec tion 2-802. ¶ 29 There are a number of problems with Mashal’s arg ument. First, Masha l’s emphasis on Rosolowski ignor es that the a ppellate c ourt ac tually

followed that de cision. I n Rosolowski

, t h er e was a deter mination of liability —and thus a decision on the merits that prec l u d ed dece rtification—bec ause the jury had returne d a verdic t on liability in favor of plaintiffs and the trial court enter ed judgme nt on the jury verdic t in a written order

. Clearly

, the rig hts and liabiliti es of the parties based on the evidenc e had been decide d in that case

. Moreove r, the instant appellate court corr ectly conclude d that its definition of “dec ision *** ‘on the merits’ *** [as] a complete deter mination of liability on a claim based on the fac ts disclosed by the evidenc e[,] *** comport[ed] with our rea soning in Rosolowski ” that a decision on the merits is something differ ent from final judgme nt. 408 I ll. App. 3d at 824. The ap p el l ate court

cor re ctl y explained that in a final judgme nt setting, both liability and damag es have been decide d. But when there is mere ly a “dec ision on the merits,” only liability has been decide d. Id. at 823-24. ¶ 30 The second problem wi t h M as h al ’s ar gu ment is that nothing in the appellate court’s opinion can be construed to re q u i re a determination of l iability with respe ct t o every class member before t h er e is a decision “on the merits.” The appellate court acknowledg ed that d ece rtification would not be allowed afte r a rig ht to rec over has been establi s h ed

. W e interpre t the appellate court to mean that if the circ uit court proce eding s had established the rig ht of one class member to rec over, that would be a decision on the merits that would bar dece rtification. I n the prese nt case , howeve r, liability has not be en established with r espec t to any of the c laims. ¶ 31 Mashal also contends that the appellate court’s definiti o n is antithetical to the purpose and intent of the class action device beca use it unde rmines the ability to bring small claims toge ther. Mashal arg ues that class actions are appropr iate when “pre dicated on the inability of the court to entertain the actua l appea ranc e of all members of the class as wel l as the impractica lity of having eac h member prosec ute his individual claim” (int er n al q uotation marks omi tted) ( Gridley v. State Farm Mutual Automobile Insurance Co.
, 217 I ll. 2d 158, 166-67 (2005))
, espec ially when damag es are limit ed ( Fakhoury v. Pappas
, 395 I ll. App. 3d

-9-302, 316 (2009))

. Mashal claims that the amount of the ticket for a violation is so small—a

“paltry ” $30—that it would be cumbe rsome for eac h taxi driver to f

ile his own lawsuit. 3 ¶ 32 We note that Mashal’s arg uments in this reg ard are not direc ted toward the propriety of J udg e Palmer’s d ec ertifica tion order per se

. Rather, he sug g ests that his arg ument should inform what constitutes a “dec ision on the merits.” But even acc epting that class cer tification standards and the propriety of the dece rtificatio n in this case are rele vant to inform our considera tion of what constitutes a “dec ision on the merits,” we still would not find Mashal’s
arg ument s p ersua sive on the question of how broadly the term should be interpre ted. The

mere desire of Mashal to g roup small cla i m s t o gether into a larg e g roup is no rea son to prema turely cut off a court’s ability to decide the propriety of class certification under the usual standards established by the class certification statute and our case law. Under those 4 standards, even the smallest of claims cannot be g rouped toge ther if common issues do not predominate over individual ones. See 735 I L CS 5/ 2-801 (West 2004). ¶ 33 Section 2-801 of the Code provides th at a cl as s action may be maintained if the court finds that “[t] here are questions of fac t or law common to the class, which common questions predominate over any questions a ffe cting only individual members.” 735 IL CS 5/ 2-801(2) (West 2004 ). T o s atisfy this predominanc e require ment, a plaintiff must nece ssarily show that succe ssful adjudi ca t i o n of t he class repr esenta tive’s i ndividual claim “will establish a rig ht of rec overy in other class members.” (I nterna l quotation marks omitted.) Smith

, 223 I ll. 2d at 449 (quoting Ave ry v. State Farm Mutual Automobile Insurance Co. , 216 I ll. 2d 100, 128 (2005))

. A favo ra b l e judgme nt for the class should decisively resolve the whole
controve rsy , and all that should rema in is for other class members to file proof of their claim. Smith

, 223 I ll. 2d at 449. I f a separ ate trial on liability is nece ssary for eac h claim, this would

seem t o be just the sort of situation war ned about in Smith

, wher e “an action conducte d nominally as a cl as s ac tion *** deg ener ate[s] in prac tice into multipl e lawsuits separ ately tried.” See id. at 450.

Ma sha l’ s ass ess m ent of the amount of cl ai m s at is sue m ay be m is le adi ng, as the ta xi dri vers’ 3 cl ai m s in thi s cas e ar e not $30 cl ai m s. Acco rdi ng to an af fi davit s u b mit te d by one of Ma sha l’ s at tor neys, ou t o f a sa m

pli ng of 78 dr ivers , not one cl ai m ed to have pai d only $30 of al le ged fl y- by ti ckets

. T he avera ge amount cl ai m ed per dri ver app ear s to be abo ut $1,3 00, wit h one dri ver cl ai m ing
to have be en t ic keted for a t ota l o f $ 11,4 10.

Barl ian t v . Fol le tt

Corp

. , 74 I ll . 2d 226, 230 (1 978) , re cognized tha t i t i s t he i nte nt of the 4 cl ass act ion st at ute to h a ve the cou rt det er mine the sui ta bil it y of the cas e for cl ass act ion st at us at the ear li est pos si ble ti m e. Barl ian t not ed tha t to al lo w a j u d ge to vacat e a cl ass det er mina ti on by

ano the r j udge, years la te r, is con tr ar y to the int ent of the st at ute and fos te rs unc er ta int y in li ti gatio n. Id. at 231. Barl ian t qua li fi ed thi s st at ement, however

, by hol din g tha t “[ i] t m ay be ben ef ic ia l to the ord er ly adminis tr at ion of j ust ic e for a sec ond j udge to set asi de an ear li er det er m ina ti on of a sui ta ble cl ass act ion if cl ear ly c h anged ci rc um st anc es and not m er e fe el ings of er ror , or m ore complet e dis covery war ra nte d it .” Id. at 231. Her e, the lowe r cou rt s spe ci fi cal ly fou nd tha t dec er ti fi cat ion was

war ra n t e d d ue to cl ear ly cha nged ci rc um st anc es and fa ct s re veale d in dis covery tha t wer e not avail abl e at the ti m e of t h e o r i gi n al cer ti fi cat ion ord er

. T hus

, Barl ian t and the cl ass act ion st at ute pro vide s om e pr ote ct ion fr om ca sua l, f ri volous or del ayed de ci si ons to dec er ti fy a cl ass

.
-10-¶ 34 I n the present case , the l ower courts found that a trial for e ac h class member would be

require d, allowing for examination and cross-e x amination of eac h class member as well as the traff ic control aides and other witnesses called to explain the other side of t h e s t o ry

. Mashal himself claims that there may be as many as 16,000 class members in this case

. As the Seventh Circuit Court of Appe als has explained,

“The picture of a *** judge presiding over thousands of evidentiar y hearings eac h involving a trivial amount of m oney is not a pretty o n e. I n these circumstance s the judge was rig ht to deny class cer tification, [citations] though not becau s e class actions are poorly suited to a g g reg ating small claims. Quite the contra ry —if a class member has a larg e enoug h stake to be able to litigate on his own, the case for classaction trea tment is wea

kened

. [ C i t at ion.] ‘The policy at the very core of the class action mec hanism is to overcome the problem that small rec overie s do not pr ovide the incentive for any individual to bring a solo a ction prosec uting his or her rig hts.’ [C itation.] But when a separ ate evidentiar y hearing is require d for eac h class member’ s claim, the ag g reg ate expense may , if eac h claim is very small, swamp the benef its of cl as s -a cti on trea tment.” Pastor v. State Farm Mutual Automobile Insurance Co. , 487 F.3d 1042, 1047 ( 7th Cir. 2007). ¶ 35 Mash al ar gues g ener ally that classes are not dece rtified afte r the litigation of common questions, but instead proce ed to a ddress issues particula r to individual class members. He cites Barliant v. Follett Corp.
, 74 I ll. 2d 226, 234 (1978), as noting that the “re quirement of i ndividual proofs should not be a bar to a class action.” He also notes that “[a]fter t h e litigation of common questions, questions that are peculiar to individual class members may be determined in ancillar

y proce eding s.” Hall v. Sprint Spectrum L.P.
, 376 I ll. App. 3d 822, 832 (2007); W

alczak v. Onyx Acc eptance Corp. , 365 I ll. App. 3d 664, 677 (2006). F inally

, he sug g ests that “[w]here liability is premised on a common prac tice uniformly applied,” it is appropr iate for resolution as a class action. See S37 Ma n a g em ent, Inc. v. Advanc e Refrigeration Co. , 2011 I L App (1st) 102496, ¶ 32. ¶ 36 We note that Mashal’s arg uments are better direc ted to the propriety of the dec ertifica tion order in this case rathe r than to the actua l questions befor e us of what constitutes a decision

on the merits. Whether the circ uit court had authority g ener ally to dece rtify the class befor e

a complete deter mination of liability on a claim based on the fac ts disclosed by the evidenc e and befor e a rig ht of rec overy is established in favor of a class member is what i s at issue here

. Neve rtheless, we have no quarr el with the g ener al principles that Mashal sets forth. But

none of the case s he cites actua lly addre ssed a situation like the one befor e us wher e common questions no longe r predominate befor e a decision on the merits is made. The case s cited do
not hold that the circ uit court woul d be cate g orica lly hamstrung from enter ing a dece rtification order in such a case

. Additionally

, Mashal’s arg ument ignor es that eac h of the

case s he cites rec og nized the overr iding principle that for the predominanc e require ment of section 2-801 to be met, the plaintiff must show that succe ssful adjudication of his individual claim wil l establish a right of rec o v er y i n other class members. Barliant

, 74 I ll. 2d at 234; S37 Managem ent , 2011 I L App (1st) 102496, ¶ 17; Hall

, 376 I ll. App. 3d at 831; W alczak

, 365 I ll. App. 3d at 674. This he was not a ble to do. ¶ 37 The differ ence betwee n the prese nt case and the case s cited by Mashal, then, appea rs to

-11-be that common issues predominate d at the time the class certification or dece rtifi ca t ion

deter minations wer e made in those case s. But in the prese nt case , there arg uably wer e no

common questions afte r J udg e Siebel’s decla ration that fly -by ticketing is not permitted by law. Moreove r, the case s Mashal relies upon involved a uniform prac tice, in w hich case , if the class repr esenta tive preva iled on his individual claim, it would have e stablished a rig ht of rec overy in othe r class members. The same is not so in the prese nt c ase, wher e a trial on liability would need to be conducte d for e ach c lass member to pre vail. ¶ 38 For example, in Barliant

, the cl as s ac t i on suit involved brea ch of contra ct, fraud, and statutory fraud claims based on the defe ndant book publisher imposing a unilatera l shipping char g e on books purcha sed on cre dit afte r the time the defe ndant chang ed from a manual to

a computerized billing sy stem. The initial trial judge certified a class of all purcha sers who paid the char ge. Bu t a subsequent judge who was assig ned to the case vaca ted the ear lier judge ’s order and dismiss ed the class action. The appellate court aff irmed, fi n d i n g the commonality

/predominanc e require ment lacking beca use even if the plaintiff succe eded in proving his case at trial, “ ‘the issue rema ining to be resolved to establish a rig ht of rec overy in any other class plaintiff is the defe ndant’s liability .’ ” Barliant

, 74 I ll. 2d at 234 (quoting Barliant v. Follett Corp.
, 53 I ll. App. 3d 101, 107 (1977))

. I n arg uing that the plaintiff’s

succe ss in proving his case at trial would not establish the rig ht to rec over in any other class

mem ber, the defe ndant arg ued that examination of eac h individual transac tion would be neede d beca

use both overc harg es and underc harg es wer e involved. The court ultimately reje cted this arg ument for a number of rea sons. I t primarily reje cted it beca use there was still

a common question that predominate d: “whe ther the addition of the ch arge , BK PST TRANS-I NS, on the invoice violates the sales ag ree ment which specifie d the books would be shipped F .O.B . defe ndant’s wa rehouse ***.” Barliant

, 74 I ll. 2d at 235. This court a lso found that defe ndant’s arg ument was “not without merit,” but that it ignor ed two points: (1) Steinberg v. Chicago Medic al School

, 69 I ll. 2d 320, 340-42 (1 9 77), noted that the requirem en t o f i n d i v idual proof should not be a bar to class action; and (2) the rec ord in Barliant showed conclusively that “the ‘under char g es’ wer e rathe r infreque nt.” Barliant

, 74 I ll. 2d at 234. ¶ 39 Barliant is easily distinguishable from the present case

. I n Barliant

, unlike the pr esent

case , there rema ined common issues that predominat ed at t he time of the dece rtification order and wer e still in need of resolution. Also, establishing the rig ht of rec overy in the class
repr esenta tive would have established a rig ht of rec overy in many of the other class members without any or at least very littl e further inquiry

. The same two points could be made about the situation in Steinberg and all of the other c ases r elied upon by plaintiffs. ¶ 40 We also conclude that the ancillary proce eding s ref err ed to in Hall and W

alczak did not ref er to thousands of trials on hotly contested issues of liability

. Rather, they ref err ed mostly to filing doc umentary proof of injury and assessing individual damag es. Ac cording ly , they

are not helpful to the resolution of the issue be fore us. ¶ 41 I nstead, the prese nt situation appea rs to be closer to Smith

, wher e this court acc epted the defe ndant’s arg ument t h at p er sonal injury actions should not be certified as class actions beca use such actions would trig g er an unworka ble arr ay of fac t-intensive, claimant-spe cific questions tha t would result in nume rous minitrials that defy class trea tment. Smith

, 223 I ll.

-12-2d at 445. Smith relied ex tensively on a similar ca se dec ided by the Texas Supreme Court, which found that class trea tment was not superior to other available methods for the fair and eff icient adjudica tion of the controve rsy : “ ‘The class action is a proce dural device intended to advanc e judicial economy by try ing claims toge ther that lend themselves to collective trea tment. I t is not meant to alter the parties’ burdens of proof, rig ht to a jury trial, or the substant i v e prer equisites to rec overy under a g iven tort. *** Although a g oal of our sy stem is to resolv e lawsuits with ‘g rea t expedition and dispatch and at the least expense,’ the
supreme objective of the courts is ‘to o b t ain a just, fair, equitable and impartial adjudication of the rig hts of litigants under established principles of substantive law.’ [C itation.] This means that ‘conve nience and economy mus t y ield to a para mount

conce rn for a fair and impartial trial.’ [C itation.] And basic to the ri gh t t o a fair trial—indeed, basic to the very essenc e of the adver sarial proce ss—is that eac h party have the opportunity to adequa tely and vigorously p re sent any materia l claims and d ef en s es. I f [t he defe ndant] chooses to challeng e the cre dibilit y of and i t s responsibility for eac h persona l injury claim individually

, then what may nominally be a class acti o n i n itially would deg ener ate in prac tice into multipl e lawsuits
separ ately tried.’ ” Smith

, 223 I ll. 2d at 451-52 (quoting Southwestern Refining Co. v. Be rnal , 22 S.W .3d 425, 437-38 (Te x . 2000)). ¶ 42 Although Mashal corr ectly points out that Smith was a mas s t o rt action and not a ca se involving thousands of traff ic tickets that wer e alleg edly illega lly issued, we still find Smith

more analog ous to the prese nt situation than the case s Mashal relies upon. Her e, J udg e Palmer c o rr ec tly found t hat t housands of highly contested trials would likely be necessary to resolve liability

in the case of each class member. W e offer the following leng thy quote from Judge Palmer ’s memora ndum decision to illust rate this point :

“Taking the position that liability is not an issue and that only damag es rema ined
to be deter mined, Plaintiffs rely on the aff idavits of 221 taxi cab drivers whose

cre dibilit y is seriously questioned by Def endants. These form aff

idavits state but do
not conclusively establish that eac h ticket rec eived by every class member was a ‘fly

by .’ *** Contrary to Plaintiffs’ asser tion, these statemen t s ar e not unref uted and Def endants a re e ntitled to cross examine e ach taxi cab driver and pre sent testimony

an d documentary evidenc e ***. *** [T] he deposition testimony of Lt. McMaho n contra dicts the aff

idavits. L t. McMahon testified that the office rs wer e permitted to mail notice of the citation only afte r attempting to persona lly serve the taxi cab driver or af fix the citation to the vehicle

. I n Ave ry v. State Farm Mutual Automobile Insurance

. Co.
, 216 I ll. 2d 100, 109 (2005), the plaintiff policy holders filed suit ag ainst defe ndant ***[,] assert[ ing] that State Fa rm’s prac tice of using non-Orig inal Equ i p m ent Manufa cture r (non-OE M) parts to repa ir the plaintiffs’ car s did not restore the car s to pre- loss condition as the parts wer e not of simil ar kind o r q u al i t y

. Id. at 110. The I llinois Supreme Court ref used to uphold the brea ch of contra ct verdic t with respe ct to any s u b cl ass as plaintiffs failed to establish damag es. Id. at 146. Plaintiffs based their theory of

rec overy on the assumpt ion that every time a repair estimate specified a non-OEM

-13-part that a non-OEM part was actua lly used. Id

. T h e I l l inois Supreme Court deter mined that the loss did not actua lly occur until non-OEM parts we re ac t ually installed. Id. Of particula

r rele vance to the case at bar, the [supreme court] found that
any deter mination as to which plaintiffs wer e elig ible for damag es would require the examination of eac h individual cl as s m ember ’s vehicle and repa ir. Such an undertaking, howeve r, wou ld me a n th a t q u e s ti ons aff

ecting individual class members would predominate over common questions, destroy ing the commonality require d for c lass action. Id. at 148. This situation is simil ar to Ave ry

. The Plaintiffs provide a solution to deter mine the amount of restitution without eac h d ri v er fi rst establishing a rig ht to rec over. I ndividual issues predominate as for eac h ticket rec eived[, as] eac h driver must prove that it was in fac t a ‘fly -by ’ ticket befor e deter mining the amount of rec overy

. As in Ave ry , an individualiz ed examination is require d. The Court is mindful of the

conce rns cited by *** Barliant that dece rtification y ear s afte r litigation can be
contra ry to the objective of the class leg islation an d can foster uncer tainty in litigation. Howeve r, the court noted circ umstances wher e dece rtification may benef it the orderly administration of justice. Barliant

, 74 I ll. 2d at 231. J udg e Siebel’s order s of [J uly 2002 and Dec ember 2005] did not addre ss those instances wher e service was frustra ted by

the driver . *** Since t he order of J uly 25, 2002 certify ing this class, J udg e S iebel ruled on the

common question of law issuing a decla ratory judgme nt tha t ‘ fly -by ’ tickets do not comport with the law. I n addition, since the order d ec er t i fy ing the class, L t. McMahon testified in her deposition in April 2005 that the only time these citations

are serve d by mail in the first instance is when service on the street is frustra ted. The Def endants have repr esente d that this c lass may number as many as 16,000 taxi cab drivers. As a result, this Court is now confr onted with a situation whe re as many as 16,000 trials must be held to deter mine liability

. The Court finds that as a r esult of chang ed circ umstances commonality no longe r ex i s t s and the class action is no lo n ger an appropr iate method for the fair and eff icient adjudication of this
controve rsy .” ¶ 43 We find that the points made by J udg e Palmer are well-take n. They also serve to illustrate why this c ase is c loser to Smith and Ave ry , and why the “a ncillary proce eding s” ref err ed to by Mashal that may addre ss individual questions in a class action suit do not appea r to be the best choice here

. ¶ 44 Ba sed on all of the fore g oing, we conclude that the appellate court’s d ef i n i t ion of a “dec ision on the merits” was corr ect. Acc ording ly

, we answe r the first certified question as follows: A “dec ision on the merits” is a complete deter mination of liability on a claim based

on the fac ts disclosed by the evidenc e, and which establishes a rig ht to rec over in at least one class member , but which is something short of a fina l judgment. ¶ 45 We believe that this definiti o n i s co n s istent with the purposes and policies underly ing sections 2 -8 0 1 an d 2-802 of the C ode. S ection 2-802 provides a proce dure that allows the circ uit court to decide certification ear ly

, but revisit the issue if nece ssary to ensure eff icient

-14-an d effective case manag ement of class litigation as new fac ts come to light and new

circ umstances arise. The rules g overning the timing of class certifications are desig ned to

conser ve ju d i ci al resour ces, to preve nt piece meal li tigation, and to provide for the s mooth functioning of class actions. Schlessinger v. Olsen

, 86 I ll. 2d 314, 317 (1981). The authority
to amend a previous certification exis ts beca use it m ay b e benef

icial to the order ly administration of justice to set aside an ear l i er d et er mination of a suitable class action if clea rly chang ed circ umstances or more complete discovery war rant it. Barliant

, 74 I ll. 2d at 231. We believe that the flexibi lity to revisit certification—befor e lia b i lity is deter mined—best serve s the objectives of the class c ertifica tion provisions.

¶ 46 I I . Partial Summary J udg ment Dec laring Fly -by Practice I lleg al ¶ 47 The second questi on certified for review asks whether J udg e Siebel’s July 2005 ruling decla ring the i ssuance of fly -by traff ic citations illega l was a “dec isio n o n t h e m erits” that
prec luded later class dece rtification under section 2-8 0 2 o f the Code. We answe r this question in the neg ative. ¶ 48 Mashal arg ues that J udg e Siebel’s Dec ember 2005 partial summary judgme nt order was

a decision on the merits beca use it ruled on the respe ctive rig hts and liabiliti es of the parties—na mely

, that the City ’s fly -by prac tice was illega l—and that decision was based on the state of fac ts disclosed by Mashal’s pleading s and the aff idavits he submitt ed in support of his motion. Mashal further arg ues that this court should disreg ard the City ’s asser tion that it did not admit it issued any fly ing tickets to Mashal or any other taxi driver. He claims that the City should be deeme d t o have admitted issuing fly ing tickets beca use it never filed a counter aff

idavit to rebut his evidence

. ¶ 49 After car efully revie wing J udg e Siebel’s order s, as well as the pleading s, aff idavits and deposi t i o n s on file, we find that Mashal’s arg ument must be reje cted. First, we note that J udg e Siebel’s ruling was one for partial summary judgme nt. Mashal’s arg ument ignor es a number of principles that would have pertaine d t o J udg e S iebel’s ruling. S pecif ically

, that
summary judgme nt is proper only wher e the pleading s, depositions, and admissions on file, toge ther with the aff

idavits, if any , show that there is no g enuine issue as to any materia l fac t and that the moving party is entitled to a judgme nt as a matter of law. 735 I L CS 5/2-1005(c) (West 2000)

. I n deter mining whether a g enuine issue of materia l fac t exi sts, the ple ading s, deposi tions, admissions and aff idavits must be construed strictly ag ainst the movant and l i b er al ly in favor of the opponent. Adams v. Northern Illinois Gas Co.
, 211 I ll. 2d 32, 4 3 (2004). A g enuine issue of materia l fac t prec luding summary judgme nt exis ts wher e the materia l fac ts are disputed or, if the materia l fac ts are undisputed, rea sonable persons might draw differ ent infere nces from the undisputed fac ts. Adames v. Sheahan

, 233 I ll. 2d 276, 296 (2009). Summary judgme nt i s a d rastic means of disposing of litigation and, there fore

, should be g rante d only when the rig ht of the moving party is clea r and fre e fr o m d o u b t. Adames

, 233 I ll. 2d at 296. Thus, the moving party has the burden o f p ro d u cti on on a

s u m m ary judgme nt motion, and the moving party ’s aff idavits may be contra dicted b y deposition testimony or other evidenc e. See, e.g. , Carollo v. Al W arren Oil Co.
, 355 I ll. App. 3d 172, 183 (2004).

-15-¶ 50 Her e, J udg e Siebel did not rule that the City was l i ab l e, o r t h at the City in fac t had a

prac tice of issuing fly -by citations. I nstead, J udg e Siebel found that fly -by violation notices violate provisions of the I llinois Vehicle Code and the City ’s ordinanc e. The judge did not specific ally find that such conduct occur red and, if so, how often. We also note that Mashal did not urg e the circu i t co urt to decide whether any particula r ticket was, in fac t, a fly ing ticket, but arg ued instead that “the issue before the [circuit court] is only whether ‘fly ing tic k e ts ’ are illega l under the Chicag o Municipal Code.” The court followed that approa ch and issued its partial summary judgme nt with respe ct to the leg al theory involved, but expressly left the rema ining liability issue for trial beca use there rema ined g enuine issues of materia l fac t in that reg ard. ¶ 51 We also do not find that the City made an admission as to liability

. The City did no more than acknow ledg e service of some tickets by mail (which it say s occur red infreque ntly ) when

a motorist beca me confr ontational or fled by driving awa y when the traff ic aide approa ched. The City notes that it “does not conce de that serving initial violation notices by mail is illega l when hand-se rvice or aff ix ation to the vehicle is i mpossible at the time of the parking violat i o n ” beca

use service at the scene is frustra ted by the driver. The City ’s arg ument, howeve r, is somewhat unclea r as to whether it thinks that J udg e Siebel ruled that initial service by mail is illega l even when frustra ted by the driver. We can find no indication from 5 our review of J udg e S iebel’s or der tha t he made suc h a ruling ag ainst the City . I f he did, it would seem to contra dict his J uly 2002 order certify ing the class, in which he define d fly -by tickets in such a way as to exclude those case s when service was frustra ted by the driver. We 6 also note that at the hear ing on the City ’s motion to dece rtify the class, J udg e Palmer delved

We do not e tha t the con fus ion is per hap s cr eat ed by the fa ct tha t the Cit y fi le d a m oti on for 5

summ ar y j udgm ent and a m emor a n d u m i n sup por t the re of on J uly 1, 2005
, in whic h it ra is ed a number of ar gum ent s suc h as fa il ure to exh aus t adminis tr at ive re m edi es, as wel l as the doc tr ine s of

res jud ic ata , coll at er al at ta ck and volunt ar y paym ent

. T he Cit y al so ra is ed in tha t m emorand um an ext ens ive ar gum ent on the m er it s of the sta tut ory sch eme, a sm al l port ion of whic h was devote d to

an ar gum ent tha t it woul d be abs urd to int er pre t the st at ute so as to “t ie the ti cketi ng off ic er ’s han ds by pro hib it ing del ivery of ci ta ti on not ic es” by m ai l wher e dir ect is s u anc e of the ti cket is m ade impossi ble

. J udge Sie bel ’s m emorand um ord er of Dece m ber 9, 2005
, re sol ved bot h Ma sha l’ s m oti on for par ti al summ ar y j udgm ent and the Cit y’s m oti on for summ ar y j udgm ent in the same ord er . But J udge Si ebe l d id not spe ci fi cal ly re fe r t o or dec ide the Cit y’s ar gum ent on t he n ar row poi nt tha t i t woul d cr eat e an abs urd it y to int er pre t the st at ute so as to pre vent ini ti al m ai l not ic e when ser vice at t he sce ne is pre vented by the dri ver. T he Cit y ass er ts tha t it at te m pte d to app eal the den ia l of i t s

summ ar y j udgm ent m oti on unde r I ll ino is Supr eme C o u rt Rule 308, but le ave to app eal was not al lowe d by the app el la te cou rt

. T he Cit y maint ai ns tha t the is sue s ra is ed in it s summ ar y j udgm ent

m oti on c oul d be app eal ed a ft er fi nal j udgm ent if it doe s no t u lt imatel y prevail in th e c ir cui t c our t.

We again not e tha t in his J uly 25, 2002
, cer ti fi cat ion ord er , J udge Sie bel des cr ibe d the fl y- 6 by ti cket as a si tua ti on where “a pol ic e off ic er or par king enf

orc ement em

plo yee not es the number of the off end i n g t a x i c ab wit hout appr oac hin g or con fr ont ing the tax i cab dri ver , and a viola ti on not ic e is m ai le d to the ta xic ab li cen see wit h a not ed d a t e , l o c a t i o n, and ti m e of the viola ti on.” (Emphasi s a dde d.)

-16-into the issue of scoff laws delibera tely evading service and noted that it would make no sense to interpre t the statute so as to disallow initial mail notice in those case s. J udg e Palmer also ultimately conclude d that J udg e S iebel’s Dece m b er 2005 partial summ ary judgme nt order did not addres s t h o s e situations wher e service was frustra ted by the driver. Under these circ umstances, we find no admission as to liabilit y here

. ¶ 52 Additionally

, we reje ct Mashal’s claims that the City did not sufficie ntly rebut Mashal’s evidenc e so as to cre ate a g enuine issue of materia l fac t. Mashal relies on the 221 aff idavits of the taxi drivers who claim they wer e issued fly -by tickets. But these aff idavits wer e sufficie ntly contra dicted by the deposition testimony of L ieutenant McMahon, who testified that she was the supervisor of the City ’s t raf

fic control aides and it was the City ’s practice
to hand violation notices to drivers or affi x t h em t o the car s. She testified that initial mail notice only occur

red infreque ntly and only in t h o s e rar e case s wher e the driver become s confr ontational or flee s when the traff ic aide approa ches. The City also maintained that it is entitled to cross-e x amine eac h driver at trial g iven its claim that in every case the notice was in fac t delivere d at the scene of the violation or such service was fr ustrated. We do not disag ree with that contention. ¶ 53 We conclude that J udg e Siebel enter ed the kind of partial summary judgme nt authorized by statute, which resolves one of the major issues, but direc ts further proce eding s upon the

rema ining undeter mined major is s u e o r is s u es. See 735 I L CS 5/2-1005(d) (West 2004). Her e, the rema ining issue left to be deter mined was liability t h at would establish a rig ht of

rec overy

. The trial court did not decide whether the City violated the law by issuing a fly -by citation to Ma shal or any

other class member. I f the trial court had enter ed an order on that question, its deter mination would have been a “dec ision on the merits” as define d in the first

certified question in this case , prec luding late r dec ertifica tion of the class. We believe that wher e J udg e Siebel’s order did not completely deter mine liability on any claim establishing

an ultimate rig ht of rec overy based on the fac ts, the corr ect answe r to the second ce rt i fi ed question is “no.”

¶ 54 I I I . Whether Orde r De ny ing City ’s Aff irmative De fense s Was
a De cision on the Merits ¶ 55 The third question certified for revie w is whether J udg e Siebel’s order deny ing the City ’s aff irmative defe nses was a “dec ision on t h e merits” under section 2-802 such that the subsequent judg e assig ned to the ca se lac ked the authority to dece rtify

the class. ¶ 56 Mashal ar gu es t h at t h e ru l ing deny ing summary judgme nt on the City ’s af firmative defe nses was not just a “dec ision on the merits,” but was also a “fina l judgme nt” beca use “it terminate[d] the litigation betwee n the parties on the merits or dispose[d] of the rig hts of the parties, either on the entire controve rsy or a separ ate part there of,” and it set or fi x ed the rig hts of a party

. See In re A.H.
, 207 I ll. 2d 590, 5 9 4 (2003). Mashal relies upon J udg e Siebel’s decla

ration that “none of these aff irmative defe nses bars t h e cl aim s raised by Mashal.” ¶ 57 We do not be lieve that the denial of the City ’s aff irmative defe nses resolved a separ ate part of the essential controve rsy betwee n the parties. Be cause the denial of summary

-17-judgme nt leave s a case still pending and undecide d, it cannot be a final order

. See

Resurgenc e Financial, LLC v. Kelly

, 376 I ll. App. 3d 60, 62 (2007); Central Illinoi s Light Co. v. Home Insurance Co. , 342 I ll. App. 3d 940, 964 (2003). ¶ 58 We ag ree with the appellate court that while J udg e Siebel’s order may have remove d the City ’s abili ty to bar Mashal’s claim based o n certain aff irmative defenses, it did not aff ect the City ’s ability to defe nd eac h of the claims on the merits. The court did not enter a “dec ision on the merits” when it denied the City ’s motion for partial summary judgme nt on their aff irmative defe nses beca

use the court made no finding of liability

. I f we wer e to adopt Mashal’s inter

preta tion, other defe ndants might re fra in f rom bring ing meritorious motions for summary judgme nt for fea r that any decision by the court would bar dece rtification. This would be contra

ry to the class action go al of promoting eff iciency in litigation. For all of these re asons, we a nswer the third question in the neg ative.

¶ 59 I V. Orde r Gra nting Partial Summ ary J udg ment on Statute of Limitations ¶ 60 The final certified question is whether J udg e Palmer’s order

, g ranting in pa rt the City ’s motion on the application of the statute of limit ations, constitutes a “dec ision on the merits” under section 2-802. J udg e Palmer g rante d partial s u mmary judgme nt to the City for all claims based on ticke ts issued more than five y ear s from the filing of Masha l’s complaint. ¶ 61 This court has previously reje cted the notion that a g rant of summary judgme nt based on

a statute of limit ations defe nse decide s liability based “on the merits” of a claim. I n Downing

v. Chicago Transit Authority

, 162 I ll. 2d 70, 77 (1994), the court held that “[w]hen a summary j u d g ment is g rante d beca use the statute of limit ations has run, the merits of the action are never examined.” Thus, Downing conclude d that a summary judgme nt ruling that

certain claims are barr ed by the statute of limit ations is not an “adjudica tion on the merits.” Id. ¶ 62 W e fi n d Downing controlling

. Acc ording ly

, we hold that the fourth and final ce rtified question must also be answer ed in the neg ative.

¶ 63 V. Mashal’ s Alternative Re quest for a Supervisory

Orde r ¶ 64 Finally

, Mashal reque sts alternat i v e re l i ef i n the event that this court ag ree s with the appellate court’s answe rs to the four certified questions. I n that event, Mashal asks this court to exercise its supervisory authority and direc t the appellate court to consider the proprie ty of Judge Palmer ’s dec ertifica tion order. ¶ 65 We decline Mashal’s reque st. First, the reque st co m es fa r too late and would unduly prolong and fra g ment the litigation. The court dece rtified the class in J uly 2008. Mashal then devised certified questions and filed a motio n fo r s u p ervisory authority with this court to compel appellate revie w. Mashal could have pursued revie w of the merits o f the dece rtification order at that time, if he believed that such revie w was war rante d befor e final judgme nt. The appellate court could have considere d the four certified questions and the rela ted dece rtification issue in one proce eding

. I nstead, Mashal waited three y ear s, until he lost in t he appe llate cour

t on the four questions cer tified. We also think it odd that Mashal

-18-makes no urg ing that, in the interests of judicial economy and the need to rea ch an equitable

resu l t , t h i s court g o bey ond the questions of law prese nted by the certified questions and consider the propriety

of the orde r that g ave rise to the appe al. S ee De Bouse v. Bay er AG
, 235 I ll. 2d 544, 550 (2009); Townsend v. Sears, Roebuc k & Co.
, 227 I ll. 2d 147, 153 (2007). ¶ 66 At any rate , we believe that gra n t i n g further appellate revie w at this point would only delay final resolution of the case

. We also note that there are many other issues that could be potentially appea led in this case afte r final judgme nt. Moreove r, we note th at co n trary to Mashal’s conten t i o n , he could appea l the dece rtification order afte r final judgme nt in his individual case

. See Deposit Guaranty National Bank ofJack son v. Roper
, 445 U.S. 326, 336 (1980) (a class repr esenta tive has standing to appea l an adver se class certification ruling even afte r he rec eives a ll he has soug ht, based on his interest in shifting costs of litigation to the class); see also American Fede ration of State, County & Municipal Em p lo y e e s v

. Departme nt

o f C en t r a l Managem ent Servic es , 173 I ll. 2d 299, 326 (1996) (a party can appea l an otherwise nonappea lable order at the time of the entry of a final order

, as all prior ruling s would be fina l and appe alable a t that point as well).

¶ 67 CONCL USI ON ¶ 68 For the fore g oing rea son, we answer t h e fi rs t ce rt ified question, by holding that a “dec ision on the merits” is a complete determination of liability on a claim based on the fac ts disclosed by th e ev idence

, and which establishes a rig ht to rec over in at least one class member, but w hich is something short of a final judgme nt. We answe r the rema ining three

certified questions in the neg ative. We also decline Mashal’s reque st for a supervisory order that would direc t the appellate court to consider the propriety of the dece rtification order at this stag e. Acc ording ly

, we aff irm the judgme nt of the appellate court and rema nd the cause to the circ uit court of Cook County for f urther pr ocee dings c onsistent with thi s opinion.

¶ 69 Appellate c ourt judg ment aff irmed. ¶ 70 Cause re manded.

¶ 71 J USTI CE FREEMAN, spe cially concur ring : ¶ 72 I concur in today ’s judgme nt and opinion. I write separ at el y t o ad d ress the issue of commonality

. The court today observe s that a comm onality problem exis ts in this case , noting that, following J udg e Siebel’s decla ration that fl y -by ticketing was unlawful, there
arg uably wer e no common questions rema ining, and “t h o u s ands of highly contested trials would likely be nece ssary to resolve liability in the case of eac h class member” ( supra ¶ 42). The court then states that this commonality problem is simil ar to that in Ave ry v. State Farm Mutual A u t o mo b i l e Insurance C o. , 216 I ll. 2d 100 (2005), where a realistic deter mination of damag es would have require d individual exam inations of class members’ vehicles, destroy ing the commonality require d for a class action. I dissented in Ave ry , challeng ing the need for such individual examination s

. Ho weve r, Ave ry is a differ ent case

. The circ umstances making individual trials likelyin the case at bar are not the same as those in

-19-Ave ry . My dissent there pr esents no obstac le to my joining today ’s dec ision.

-20-