No. 2--01--1027

_________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS	

	SECOND DISTRICT

_________________________________________________________________

JOSEPH ENZENBACHER, Ex'r  of the	) Appeal from the Circuit Court

Estate of Mary Enzenbacher, 		) Du Page County.

SUSAN CONFORTI, FRANK NESLER,      )

DELORES M. NESLER, GUY A. NEUSES, 	)

MARY K. NEUSES, BETSY THOMEN, GENE )

K. THOMEN, and MARK THOMEN, on  	)

Behalf of Themselves and All		)

Others Similarly Situated,         )

                                   )

	Plaintiffs-Appellants,        )      

                                   )          

v.                                 ) No. 97--L--1039

                                   ) 

BROWNING-FERRIS INDUSTRIES OF      )                   

ILLINOIS, INC., and UNKNOWN		) 

OFFICERS AND DIRECTORS; E AND E   	) 

HAULING, INC., and UNKNOWN  		)

OFFICERS AND DIRECTORS; and FOREST	)		

PRESERVE DISTRICT OF DU PAGE		)

COUNTY and UNKNOWN OFFICERS		) Honorable

AND DIRECTORS,      			) Edward R. Duncan and

   							) Patrick J. Leston,

    Defendants-Appellees.          ) Judges, Presiding.	      

_________________________________________________________________

	JUSTICE McLAREN delivered the opinion of the court:

	This matter comes before the court as an interlocutory appeal brought pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308). 

In this appeal, plaintiffs seek review of the trial court’s order

denying their motion for leave to file an amended complaint.  The

amended complaint sought to maintain the pending cause as a class

action.  We answer the relevant certified questions presented and

remand.

	Plaintiffs are owners of residential property neighboring the

Mallard Lake Landfill.  On September 24, 1997, nine plaintiffs

filed suit against Browning-Ferris Industries, the Forest Preserve

District of Du Page County, and E&E Hauling, Inc., the owners of

the landfill and persons responsible for operating, maintaining,

and depositing refuse at the landfill site.  The complaint alleged

common-law torts of trespass to land and temporary and continuing

nuisances to plaintiffs' property arising from dirt, dust, debris,

odors, and noise emanating from the landfill.

	During the course of discovery, defendants produced a letter

of complaint dated May 2, 1998, in which 93 signatories complained

of trespass and nuisance to their properties resulting from the

landfill.  Plaintiffs contend that this letter prompted them to

seek leave to file an amended complaint.  Although the proposed

amended complaint was premised on allegations of trespass and

nuisance, as alleged in the original complaint, plaintiffs now

sought to pursue the matter as a class action.

	The trial court conducted a hearing on plaintiffs’ motion for

leave to file the amended complaint.  The motion was denied based

on findings that (1) the claims could not be brought as a class

action as a matter of law because property damage claims are too

individualized for class treatment; (2) the class allegations were

conclusory; and (3) the motion was untimely.  Plaintiffs filed a

motion to reconsider.  The motion was denied.  However, the trial

court granted plaintiffs leave to file a second motion for leave to

amend.

	On July 12, 1999, plaintiffs filed a second motion for leave

to file an amended complaint.  The amended complaint was again

styled as a class action and sought certification of the following

class of plaintiffs:

		"All people owning real property located within or

bounding on the following geographic area (the class area),

which has been determined by encompassing the complaints made

against the landfill:  bounded on the north by Lake Street,

bounded on the east by Gary Avenue, bounded on the south by

the tracks of the Illinois Central Gulf Railroad, and bounded

on the west by County Farm Road, except for the area north of

Schick Road, where Morton Road exists, in which case Morton

Road shall serve as the west border."

	According to the allegations of the proposed amended

complaint, the exact number of class members was not known but was

believed to exceed 1,000 members.  The complaint alleged that all

the homeowners in the class area had suffered from diminished

enjoyment and value of their properties due to noise, dust, odor,

and litter blowing or moving onto their properties from the

landfill.  In count I, plaintiffs alleged that defendants committed

trespass to land due to the blowing and movement of litter, debris,

dust, dirt, and noxious odors from the landfill.  In counts II and

III, plaintiffs alleged a temporary and continuing nuisance.

	After a hearing, the trial court again denied plaintiffs leave

to amend.  The court again determined that the proposed amended

complaint was untimely.  It further determined that the claims

could not be brought as a class action because each parcel of property is unique and, therefore, plaintiffs could not satisfy the

element of commonality necessary for certification of the class

action.

	The trial court granted plaintiffs’ motion for certification

pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308), finding

that answers to the following certified questions of law would

materially advance the ultimate termination of the litigation: 

		"A. Whether the trial [c]ourt erred in determining the

issue of commonality without receiving briefing, evidence and

argument on the issue of class certification as provided for

in the Illinois Code of Civil Procedure[.]

		B. Whether the trial court abused its discretion when it

refused to consider additional evidence Plaintiffs first

submitted in support of a Motion for Reconsideration, based on

the court’s determination that this material was not 'newly

discovered evidence' because it was available at the time of

the initial hearing[.]	

		C. Whether  , if the trial [c]ourt misapprehended the law

in holding that the 'commonality' requirement could not be

met, [it should] have granted leave to file an amended class

action complaint where the amendments were sought within a few

months after plaintiffs’ counsel determined the case should be

pursued as a class action and on a schedule set by the court,

where the amendments did not add any additional substantive

claims, and where the parties were not yet at issue and no

depositions had yet been taken[.]	

		 D. D.   	Whether the trial court abused its discretion in

denying Plaintiffs leave to file an amended complaint, when

they did not seek leave to amend until 18 months after the

commencement of this action and where the court determined

plaintiffs were aware of facts which would have supported

class-action allegations almost one year before they filed

suit[.]	

		E.     	 Whether the trial court abused its discretion when it

denied Plaintiffs leave to amend based on the court’s

determination that the Plaintiffs could not proceed as a class

on their claims that the landfill was a nuisance and that the

landfill’s operations caused trespasses on their property[.]"

	Section 2--801 of the Code of Civil Procedure (Code) addresses

class action complaints and contains the following prerequisites

for the maintenance of a class action: 

	"An action may be maintained as a class action in any court of

this State and a party may sue or be sued as a representative

party of the class only if the court finds:

		(1) The class is so numerous that joinder of all members

is impracticable.

		(2) There are questions of fact or law common to the

class, which common questions predominate over any questions

affecting only individual members.

		(3)  The representative parties will fairly and

adequately protect the interest of the class.

		(4) The class action is an appropriate method for the

fair and efficient adjudication of the controversy."  735 ILCS

5/2--801 (West 2000).  

	The trial court gave two reasons for denying plaintiffs’

motion for leave to file the amended complaint.  First, although

defendants acknowledged that the statute of limitations would not

bar a separate class action suit arising from the same facts, the

trial court found that the motion for leave to amend was untimely. 

Second, even though a class action complaint was not even on file,

the trial court found that the proposed action could not be

maintained as a class action because each parcel of land was unique

and plaintiffs would not be able to meet the commonality

requirement necessary for class certification.

	Obviously, a class action complaint must be filed in order to

proceed with a class action suit.  Once a complaint is filed,

section 2--801 of the Code, set forth above, contains very specific

requirements that must be satisfied before the trial court

certifies the class and finds that the action may proceed as a

class action.  One of those issues is commonality.  

	Nevertheless, the trial court treated the motion for leave to

amend as a motion for class certification.  In denying leave to

amend, the trial court considered the merits of plaintiffs’ case

and prejudged issues that would have been properly presented and considered in a motion for class certification only after the

complaint was on file.  The issue of commonality, which the trial

court found could not be satisfied, was not properly before the

court at the time it denied plaintiffs leave to amend.

	The appropriate way to determine whether to certify a class is

by a motion for class certification.  At the time such a motion is

presented for hearing, the trial court may consider any matters of

law or fact properly presented by the record, including pleadings,

depositions, affidavits, answers to interrogatories, and any

evidence adduced at hearing on the motion.  See Brown v. Murphy, 278 Ill. App. 3d 981, 989 (1996).  	

	At the time plaintiffs’ motion for leave to amend the

complaint was denied, the parties had not presented any evidence

concerning the issue of commonality, as it was not an issue

properly before the court.  For these reasons, we respond "yes" to

certified question A.  The trial court erred in determining the

issue of commonality.

	Certified questions C, D, and E each address the issue of

whether the trial court erred in denying plaintiffs leave to amend

the complaint.  Questions C and D address the timing of the motion

for leave to amend, and question E, although presented as a

question of law, addresses the issue of whether the trial court

correctly found that plaintiffs could not proceed as a class on

their claims that the landfill was a nuisance and that its

operations caused trespasses on their properties.

	We first address the issue of the timing of the proposed

amended complaint.  While the Code sets forth requirements for

maintaining a class action suit, it does not provide any specific

limitations period for bringing suit as a proposed class. 

Likewise, it does not contain any restrictions concerning

amendments to existing complaints to add class action allegations.

	Section 2--616(a) of the Code contains the following

provisions applicable to amended pleadings:

		"At any time before final judgment amendments may be

allowed on just and reasonable terms, introducing any party

who ought to have been joined as plaintiff or defendant,

dismissing any party, changing the cause of action or defense

or adding new causes of action or defenses, and in any matter,

either of form or substance, in any process, pleading, bill of

particulars or proceedings, which may enable the plaintiff to

sustain the claim for which it was intended to be brought or

the defendant to make a defense or assert a cross claim."  735

ILCS 5/2--616(a) (West 2000).

		Section 2--616(b) addresses the timing of amended pleadings as follows:

		"The cause of action, cross claim or defense set up in any amended pleading shall not be barred by lapse of time

under any statute or contract prescribing or limiting the time

within which an action may be brought or right asserted, if

the time prescribed or limited had not expired when the

original pleading was filed, and if it shall appear from the

original and amended pleadings that the cause of action

asserted, or the defense or cross claim interposed in the

amended pleading grew out of the same transaction or

occurrence set up in the original pleading, even though the

original pleading was defective in that it failed to allege

the performance of some act or the existence of some fact or

some other matter which is a necessary condition precedent to the right of recovery or defense asserted, if the condition

precedent has in fact been performed, and for the purpose of

preserving the cause of action, cross claim or defense set up

in the amended pleading, and for that purpose only, an

amendment to any pleading shall be held to relate back to the

date of the filing of the original pleading so amended."  735

ILCS 5/2--616(b) (West 2000).

	Defendants concede that the statute of limitations applicable

to the proposed class action complaint seeking damages for trespass

and nuisance caused by the landfill while in operation does not bar

the proposed amended complaint.  See 735 ILCS 5/13--205 (West

2000).  Likewise, defendants concede that the statute of

limitations would not bar plaintiffs from filing a separate class

action suit arising out of the same set of facts as set forth in

the original complaint and voluntarily dismissing the underlying

suit if a motion for class certification was granted.  Yet,

defendants vigorously contend that the trial court properly denied

leave to amend the complaint because the motion was untimely. 

Defendants assert that plaintiffs knew sufficient facts at the time

of the initial filing to bring suit as a class action and that

their failure to do so until two years later precludes their

attempt to amend.  In support of this proposition, defendants cite

this court’s opinions in Trans World Airlines, Inc. v. Martin Automatic, Inc., 215 Ill. App. 3d 622 (1991), and Ray Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 48 (1992).  Although this court held in both cases that the trial court did not abuse its discretion in denying leave to amend a complaint, the cases are

distinguishable.       

	In Trans World Airlines, the plaintiff sought to amend a complaint to add two new causes of action six years after the

initial filing and on the eve of trial.  Not only did we consider

the extreme time lapse in affirming the denial of leave to amend 

but also we considered that the allegations in the proposed

complaint were specious.  See Trans World Airlines, 215 Ill. App. 3d at 628.  Similarly, in Ray Dancer, our affirmance of the trial court’s order denying leave to amend the complaint was based not on

the timing but instead on the fact that the allegations set forth

in the proposed amended counts failed to contain sufficient facts

and did not cure the defects noted in the prior complaint.  See Ray Dancer, 230 Ill. App. 3d at 48-49.  

	Here, unlike Trans World Airlines and Ray Dancer, plaintiffs’ proposed amended complaint did not seek to correct a factually

deficient complaint or add new legal theories.  Instead, the

proposed complaint sought to add new plaintiffs by bringing suit as

a class action.

	In determining whether to grant leave to amend, the trial

court should consider the following four factors: (1) whether the

proposed amendment would cure the defective pleading; (2) whether

other parties would sustain prejudice or surprise by virtue of the

proposed amendment; (3) whether the proposed amendment is timely;

and (4) whether previous opportunities to amend the pleading could

be identified.  Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 276 (1992).  One rationale expressed by the court for denying leave to amend in the case before us was the timing.  The

proposed complaint did not change or add to the legal theories

asserted in the prior complaint.  Instead, the complaint sought to

add plaintiffs.  Since the statute of limitations applicable to the

causes of action asserted in the proposed amended complaint had not

run at the time plaintiffs sought leave to amend, the proposed

amendment was not untimely simply because it was brought 18 months

after the original suit was filed. We fail to see how a complaint

that could be brought by any member of the purported class within

the statute of limitations could be deemed untimely based merely on

the passage of time when brought by these plaintiffs. In other

words, if an original cause could have been brought, it would

follow that an amendment comprising the same cause would be no less

timely. 

	Timing is not the only factor the court should consider in

determining whether to grant leave to amend.  As set forth in

Loyola Academy, the trial court should also consider whether other parties would be prejudiced by the proposed amendment.  Although

oral discovery had not even begun, defendants contend that pursuit

of the case as a class action would complicate and delay the case

and force defendants to reassess their litigation strategy. 

Undoubtedly, any matter pursued as a class action is more time

consuming and complicated and magnifies the scope of the

litigation.  However, the fact that defendants may be required to

litigate a class action that was not originally filed in this

fashion does not outweigh the interests of the potential class

members who would be prejudiced if the proposed amendment was denied, particularly when the statute of limitations has not run. 

	We will not engage prematurely in a factual review of whether

the trial court properly determined that plaintiffs could not

satisfy the element of commonality, as set forth in certified

question C, or whether plaintiffs were aware of facts to support

class action allegations one year before they filed suit, as set

forth in certified question D, as these are not questions of law

properly addressed on an interlocutory appeal brought pursuant to

Supreme Court Rule 308 and are the proper subject of motions and

hearings not yet heard by the trial court.  155 Ill. 2d R. 308. 

However, we answer "yes" to the portion of certified question C

concerning whether the trial court abused its discretion in denying

leave to amend based on timing when the proposed amendments did not

add any additional substantive claims, the parties were not yet at

issue, no depositions had been taken, and the statute of

limitations had not run.  We also answer "yes" to the portion of

certified question D concerning whether the trial court abused its

discretion in denying leave to amend the complaint based on the

timing.

	Certified question E inquires whether the trial court abused

its discretion in denying leave to amend based on its determination

that plaintiffs could not proceed as a class on allegations

premised upon nuisance and trespass.  Again, in deciding the motion

for leave to amend the complaint, the trial court considered issues

that were not properly before the court.  When ruling on a motion

for leave to amend, it is improper for the trial court to prejudge

the merits of the proposed complaint without a pending motion to dismiss the complaint.  In our opinion, the trial court abused its discretion in denying leave to amend based on a finding that

plaintiffs could not proceed as a class on claims for nuisance and

trespass, as this issue was not properly before the court and would appropriately be determined at the time plaintiffs sought class certification.  Therefore, we respond "yes" to certified question

E. 

	Based on our responses to certified questions A, C, D, and E,

we deem it is unnecessary to address certified question B, except

to indicate that the question presumes the procedural history of

this cause is correct.  Because the procedural history is flawed,

the perspective of "newly discovered evidence" is also flawed and

is not material to the correct procedure described in this opinion.

	The certified questions of the circuit court of Du Page County are answered, and we remand this cause to the circuit court of Du Page County for further proceedings in conformance with the opinion

of this court.

	Certified questions answered.  Cause remanded.

	BOWMAN and GROMETER, JJ., concur.