TERESA DE BOUSE, Indiv. and on Behalf of Others Similarly Situated, Plaintiff-Appellee, v. BAYER AG et al., Defendants-Appellants, 373 Ill. App. 3d 774

JUSTICE DONOVAN delivered the opinion of the court: A class action complaint sounding in consumer fraud was filed in the circuit court of St. Clair County by the plaintiff, Teresa De Bouse, individually and on behalf of all others similarly situated, alleging that Bayer AG, Bayer Corp., SmithKline Beecham Corp., doing business as GlaxoSmithKline, GlaxoSmithKline PLC, Marcy Grim, Michael Harvey Davidson, M.D., and Michael Lever (the defendants) committed common law fraud and violated the Consumer Fraud and Deceptive Business Practices Act (the Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2004)). The St.

Clair County circuit court granted the plaintiffs motion to certify the cause as a class action. Subsequently, the circuit court denied the defendants’ motion for a

summary judgment, but it certified three questions of law for appellate review pursuant to Supreme Court Rule 308(a) (155 Ill. 2d R. 308(a)). The defendants filed a petition for leave to appeal the class certification order pursuant to Supreme Court Rule 306(a)(8) (210 Ill. 2d R. 306(a)(8)), and leave was granted. The defendants filed a separate application, petitioning this court to consider the questions that had been certified by the trial court, and that application was granted. The appeals were consolidated under cause No. 5 — 06—0077. A.

Jurisdiction and the Class Certification Order The defendants filed their petition for leave to appeal the class certification order pursuant to Supreme Court Rule 306(a)(8). The plaintiff then moved to dismiss the appeal for a lack of appellate jurisdiction. Initially, this court denied the plaintiffs motion to dismiss and granted the defendants’ petition for leave to appeal. After reviewing the record, we determined that it was necessary to revisit the issue of jurisdiction.

We have reconsidered the issue of jurisdiction in light of the record, and we have determined that the Rule 306(a)(8) appeal was untimely filed and must be dismissed. The record shows that a hearing was held on the plaintiffs motion for class certification on July 29, 2005. At the close of the hearing, the circuit court announced that it would take the matter under submission. The circuit court entered a written order stating that the issue was under submission. The parties submitted proposed orders for the court’s consideration.

On September 1, 2005, the court signed a 12-page order granting certification of the class. The order is contained in the court file. It bears a file stamp of September 2, 2005. The court file also includes a computerized docket sheet that contains an entry dated September 2, 2005, indicating that a 12-page order was entered that date. There is no indication that the order was served personally or by mail on counsel of record. The record shows that the parties appeared in open court on September 27, 2005, and December 29, 2005, in relation to the

summary judgment motion that had been filed in the case. The order entered after the hearing on September 27, 2005, specifically states that all parties appeared by counsel on that date. The parties also appeared for a status conference on January 11, 2006.

On January 25, 2006, the defendants filed a motion to vacate or amend the class certification order nunc pro tunc on the grounds that they had not received notice of the entry of the order granting class certification, that the circuit court clerk failed to serve a copy of the order on all parties and failed to note any service in the file as required under Twentieth Judicial Circuit Rule 2.06 (20th Judicial Cir. Ct. R. 2.06 (eff. December 12, 1991)), and that they made diligent efforts to monitor the court file once the motion had been taken under advisement by the court.

The defendants asserted that they first became aware that the order had been entered during the status conference on January 11, 2006, that their right to appeal was “severely prejudiced,” and that the circuit court had the authority to enter a nunc pro tunc order to avoid the prejudice. The defendants attached affidavits from the defendants’ attorneys and their staff members. The affidavits outlined the efforts undertaken to monitor the court file. The plaintiff filed a response in opposition to the defendants’ motion for an order nunc pro tunc.

Therein, the plaintiff stated that her attorneys had obtained a copy of the class certification order by appearing in person at the circuit clerk’s office on or about September 5, 2005, and making an inquiry about the status of the class certification motion. The plaintiff attached affidavits from its attorneys and a copy of the computerized docket sheet that revealed an entry of September 2, 2005, referencing a 12-page order. On January 30, 2006, the court held a hearing on the defendants’ motion to vacate or amend the class certification order nunc pro tunc.

After considering the arguments of counsel, the judge said, “It’s only just that I enter an order nunc pro tunc if that in some way can protect your right to appeal this thing if that’s the right thing to do.” The court then entered the following order: “Defendants’ Motion to Vacate or Amend Class Certification Order Nunc Pro Tunc called and heard. Over plaintiffs objection, said motion is hereby GRANTED.

The Court’s Order dated September 2, 2005, granting Plaintiffs Motion for Class Certification is hereby vacated nunc pro tunc and amended to he entered January 11, 2006, the date the defendants’ [sic] received notice of said Order.” The defendants filed their petition for leave to appeal the certification order on February 10, 2006. Supreme Court Rule 306(a)(8) allows a party to petition for leave to appeal from an order granting or denying the certification of a class action.

Supreme Court Rule 306(c) (210 111. 2d R. 306(c)) requires the petition to be filed in the appellate court within 30 days after the entry of the order granting or denying certification. The 30-day time limit under Rule 306 is jurisdictional. Kemner v. Monsanto Co., 112 Ill. 2d 223, 236, 492 N.E.2d 1327, 1333 (1986); Leet v. Louisville & Nashville R.R. Co., 131 Ill. App. 3d 763, 765, 475 N.E.2d 1340, 1341-42 (1985). There is no provision for extending the time for filing a petition for interlocutory appeal other than by permission of the reviewing court pursuant to Rule 306(f) (210 Ill. 2d R. 306(f)).

In this case, the certification order was entered on September 2, 2005. By our calculation, the petition for leave to appeal should have been filed no later than Monday, October 3, 2005. The defendants’ petition for leave to appeal was not filed until February 10, 2006, and they did not seek permission from this court to file an untimely petition for leave to appeal. In accordance with the time limits set forth in Supreme Court Rule 306, the defendants’ petition for leave to appeal was filed out of time.

However, the defendants presented a number of legal and equitable arguments to the trial court in support of their motion to vacate or amend the certification order nunc pro tunc. We have considered those arguments, and for the reasons discussed below, we have concluded that the defendants have not established any basis for excusing their failure to file the petition for leave to appeal within the 30-day time limit.

The defendants have argued that an order to vacate or amend the certification order nunc pro tunc is proper because the circuit clerk’s failure to provide notice of the entry of the certification order prejudiced their right to file a petition for leave to appeal. The Illinois Supreme Court has considered and rejected similar arguments. Mitch ell v. Fiat-Allis, Inc., 158 Ill. 2d 143, 632 N.E.2d 1010 (1994); Granite City Lodge No. 272, Loyal Order of the Moose v. City of Granite City, 141 Ill. 2d 122, 565 N.E.2d 929 (1990). In Mitchell v.

Fiat-Allis, Inc., the trial court signed an order disposing of the case on February 27, 1991. The order was file-stamped March 1, 1991, and included instructions to the circuit court clerk to send a copy of the order to the attorneys of record. Mitchell’s attorney first learned of the order on April 25, 1991. After conferring with opposing counsel and the trial court, Mitchell’s counsel filed a petition to withdraw or vacate the order. On April 29, 1991, the trial court granted the petition, withdrew the judgment dated February 27, 1991, and reentered the same order, effective April 29, 1991.

The appellate court upheld jurisdiction and considered the merits of the appeal. The Illinois Supreme Court reversed, finding that the trial court lacked authority to vacate and reenter its order more than 30 days after it had been entered. The supreme court held that trial courts lacked the authority to excuse compliance with the supreme court rules governing the time for filing a notice of appeal. Fiat-Allis, Inc., 158 Ill. 2d at 150, 632 N.E.2d at 1012.

The supreme court had clearly stated that the parties bear the responsibility to monitor the status of a case and that this responsibility is not lessened where the circuit clerk fails to give notice of the entry of the order. Granite City Lodge No. 272, Loyal Order of the Moose, 141 Ill. 2d at 127, 565 N.E.2d at 931; Fiat-Allis, Inc., 158 Ill. 2d at 151, 632 N.E.2d at 1013. Actual notice is not required so long as the order appealed from was expressed publicly, in words, at the situs of the proceeding.

Fiat-Allis, Inc., 158 Ill. 2d at 148, 632 N.E.2d at 1012; Granite City Lodge No. 272, Loyal Order of the Moose, 141 Ill. 2d at 123, 565 N.E.2d at 929. The facts in the case at bar are similar to those in Fiat-Allis, Inc. Here, a typewritten order granting class certification was entered into the court file on September 2, 2005, and its entry was noted in the computerized docket. The defendants indicated that they first learned of the order on January 11, 2006, months after the time for filing a petition for leave to appeal had passed.

They filed a motion to vacate or amend the certification order nunc pro tunc on January 25, 2006. On January 30, 2006, the trial court entered an order vacating nunc pro tunc the order entered September 2, 2005, and amended it to be entered January 11, 2006. In our view, the decision in Fiat-Allis, Inc. is controlling under the facts of the case, and thus, the trial court lacked authority to vacate and reenter the same order more than 30 days after it had been originally entered in order to excuse compliance with the filing requirements of Rule 306.

The defendants have also asserted that Twentieth Judicial Circuit Rule 2.06 requires the circuit clerk to serve copies of orders on the attorneys of record, that they relied on the circuit clerk to comply with the rule, and that they were prejudiced by the circuit clerk’s failure to comply. Local rule 2.06 directs the circuit clerk to serve on all the parties of record, by personal service or by mail, a copy of an order within three days of its entry and to note compliance with the rule in the court file. 20th Judicial Cir. Ct. R. 2.06 (eff. December 12, 1991).

Under Supreme Court Rule 21(a) (134 Ill. 2d R. 21(a)), the circuit court is authorized to adopt rules for the orderly disposition of its business. However, local rules may not be construed to modify, limit, abrogate, or otherwise conflict with the Illinois Supreme Court rules and the existing laws of Illinois. See 134 Ill. 2d R. 21(a); People v. Schroeder, 102 Ill. App. 3d 133, 137, 429 N.E.2d 573, 577 (1981). We conclude that the trial court had no authority to toll or to extend the time for filing a Rule 306 appeal in order to remedy the circuit clerk’s failure to comply with a local administrative rule.

Furthermore, the record belies the defendants’ assertions that they detrimentally relied on local rule 2.06 and that they were prejudiced by the circuit clerk’s noncompliance with the rule. In the pleadings and affidavits filed in the trial court, the defendants detailed the efforts they made to monitor the status of the class certification motion. The defendants’ attorneys stated that they assigned paralegals or other staff members to monitor the court file once the court took the class certification motion under advisement.

In addition, the defendants’ attorneys appeared in open court on September 27, 2005, prior to the running of the 30-day time limit, to argue their

summary judgment motion. The record shows that the defendants had ample opportunities to inspect the court file and to ascertain whether an order had been entered on the class certification motion. We find it remarkable and inexplicable that the attorneys did not inquire about the status of the class certification motion when they appeared before the court on September 27, 2005. The steps taken by the defendants to monitor the court file undermine their claims of reliance on the local rule to their detriment.

The defendants claimed that the circuit court has the authority to vacate or amend and to reenter an order to avoid prejudice to the parties. In support of that contention, they cited Comdisco, Inc. v. Dun & Bradstreet Corp., 306 Ill. App. 3d 197, 713 N.E.2d 698 (1999), and Graves v. Pontiac Firefighters’ Pension Board, 281 Ill. App. 3d 508, 667 N.E.2d 136 (1996). In Graves v. Pontiac Firefighters’ Pension Board, the trial court entered an order at the close of the evidence, stating that the case was being taken under advisement and that the court would rule by mail.

Subsequently, the trial court ruled on the motion, but through an oversight it did not send copies to the parties. When the oversight was brought to the court’s attention, it entered a new order acknowledging its oversight and providing that the earlier order would be final for purposes of appeal as of the date that the new order was mailed. An appeal was taken within 30 days of the new order.

In considering whether the appeal had been timely filed for purposes of jurisdiction, our colleagues in the Fourth District held that because the trial court had expressly stated that it would rule by mail, the initial order did not comport with the provisions of the court’s pronouncements and it did not become final until mailed by the circuit court. Graves, 281 Ill. App. 3d at 516, 667 N.E.2d at 141.

The facts and circumstances in Comdisco, Inc. are similar to those in Graves in that the trial court noted that the appellant had relied on the trial court’s standard operating procedure of mailing a copy of the final judgment to the parties and that the court failed to mail the judgment in that case. Comdisco, Inc., 306 Ill. App. 3d at 202, 713 N.E.2d at 700. The case before us is distinguishable from the aforementioned cases on its facts. Here, the trial court did not expressly provide that it would rule by mail, and there is no evidence of a standard operating procedure.

As previously noted, the detailed accounts of the actions taken by the defendants to monitor the status of the certification motion belie the claims of detrimental reliance. As we reviewed this issue, we found it noteworthy that the Fourth District declined to extend the Comdisco, Inc. decision to a case where the trial judge did not find that the plaintiffs failure to timely file his notice of appeal was the direct result of the court’s not following its usual practice of mailing copies of its docket entries to the parties. Pappas v. Waldron, 323 Ill. App. 3d 330, 336, 751 N.E.2d 1276, 1280-81 (2001).

The Fourth District also recently questioned whether its decision in Graves is consistent with the supreme court rules and FiatAllis, Inc. Berg v. White, 357 Ill. App. 3d 496, 501, 828 N.E.2d 889, 893 (2005). The few decisions in which a court has employed equitable principles to cure the mistakes of ministerial officers are limited to the specific facts and circumstances presented in those cases. The case at bar is not analogous to those cases. Although the issue was not raised by the parties, we have also considered the propriety of the “nunc pro tunc” order.

The purpose of a nunc pro tunc order is to correct the record of the judgment, to correct a clerical error or matter of form so that the record conforms to the judgment actually rendered by the court. Beck v. Stepp, 144 Ill. 2d 232, 238-39, 579 N.E.2d 824, 827-28 (1991); In re Marriage of Breslow, 306 Ill. App. 3d 41, 53, 713 N.E.2d 642, 651 (1999).

In this case, the trial court judge specifically stated that it would enter a nunc pro tunc order “if that in some way can protect [the defendants’] right to appeal this thing if that’s the right thing to do.” The nunc pro tunc order was not issued to conform the order to the ruling actually rendered on September 2, 2005. It was not issued to amend an errant provision in the September 2, 2005, order. Its only purpose was to restart the 30-day appeals clock. The situation faced by the trial court is similar to that which confronted the trial court in Fiat-Allis, Inc.

In that case, the Illinois Supreme Court recognized that the circuit court’s attempt to assist counsel was understandable and well-intentioned, but errant just the same. Fiat-Allis, Inc., 158 Ill. 2d at 150, 632 N.E.2d at 1012. The supreme court stated, “Attorneys are not excused from following the filing requirements of [the supreme court rules] merely because a judge has recommended a procedural route that lies beyond the judge’s authority to travel.” Fiat-Allis, Inc., 158 Ill. 2d at 150, 632 N.E.2d at 1013. In our view, Fiat-Allis, Inc. controls the present case.

Each party had a responsibility to closely and adequately monitor the progress of its case and the court’s rulings in order to ensure that the much-anticipated petition for leave to file the interlocutory appeal was timely filed. That was not accomplished here. The circuit clerk’s failure to mail copies of the order of September 2, 2005, to the parties does not excuse the untimely filing of the petition for leave to appeal. The nunc pro tunc order was not a valid means by which the circuit court could reenter the exact same order and thereby start a new 30-day period in which to file an interlocutory appeal.

The record clearly shows that the order granting class certification was a part of the court file and available .for public inspection. It was also noted in a docket entry. There is no provision for extending the time for filing a petition for interlocutory appeal other than by permission of the reviewing court pursuant to Rule 306(f), and that was not done here. The time for filing the petition for leave to appeal is jurisdictional, and the failure to meet it or to secure a timely extension of time from the appellate court will result in the dismissal of the appeal.

Accordingly, we find that the defendants’ Rule 306(a)(8) petition for leave to appeal the class certification was untimely filed and that the appeal must be dismissed for a lack of jurisdiction. B. The Certified Questions The defendants have devoted a considerable portion of their arguments on appeal to the circuit court’s decision to deny the motion for a

summary judgment. We decline to specifically address the issues raised in the

summary judgment motion for three reasons. First, the denial of a motion for a

summary judgment is interlocutory in nature, and it is not a final, appealable order. See La Salle National Bank v. Little Bill “33” Flavors Stores, Inc., 80 Ill. App. 2d 298, 225 N.E.2d 465 (1967). Second, we limited interlocutory review to the legal issues certified by the trial court. Third, it appears that there are material issues of fact raised in the

summary judgment motion about which discovery has not been had. Thus, any review of the underlying order is premature and will not serve the interests of judicial economy. The trial court concluded that the resolution of the following questions of law could materially advance the disposition of the litigation, and the court certified them for appellate review in accordance with Supreme Court Rule 308(a): “I.

Whether an Illinois consumer who purchases a pharmaceutical product, later withdrawn from the market because it was deemed unsafe, can maintain an action under the Illinois Consumer Fraud Act [citation], even though the pharmaceutical company did not engage in direct communication or advertising to the consumer. II.

Whether the Defendants’ offering for sale of a product in Illinois is a representation to prospective customers that the product is reasonably safe for its intended purpose such that proof of a Defendants’ [sic] failure to disclose safety risks associated with the product to consumers is a violation of the Illinois Consumer Fraud Act. III.

Whether fraudulent statements or omissions made by a defendant to third[ ]parties, other than the consumer, with the intent that they (1) reach the plaintiff! ] [and] (2) influence plaintiff’s actionf,] and (3) [when] plaintiff relies upon the statements to his detriment, can support an action under the Illinois Consumer Fraud Act.” The elements of a claim under the Consumer Fraud Act are as follows: (1) a deceptive act or practice by the defendant, (2) the defendant’s intent that the plaintiff rely on the deception, (3) the occurrence of the deception in a course of conduct involving trade or commerce, and (4) actual damage to the plaintiff (5) proximately caused by the deception. 815 ILCS 505/2 (West 2004); Zekman v.

Direct American Marketers, Inc., 182 Ill. 2d 359, 373, 695 N.E.2d 853, 860-61 (1998). The questions certified for review seem to be directed toward further defining these elements in a case where the alleged deception is indirect and covert. The issue of indirect deception was considered by the Illinois Supreme Court in Shannon v. Boise Cascade Corp., 208 Ill. 2d 517, 805 N.E.2d 213 (2004).

In Shannon, the supreme court stated that proof of the actual deception of a plaintiff is required to establish the proximate cause requirement, but the deception need not always be direct between the defendant and the plaintiff. Shannon, 208 Ill. 2d at 525-26, 805 N.E.2d at 218. It is enough that the defendant’s deception, whether made directly or indirectly, be committed with the intention that it influence the plaintiffs action and that the plaintiff relied on the deception to her detriment. Shannon, 208 Ill. 2d at 526, 805 N.E.2d at 218; St. Joseph Hospital v. Corbetta Construction Co., 21 Ill.

App. 3d 925, 954, 316 N.E.2d 51, 72 (1974). In illustrating the concept of “indirect deception,” the supreme court proposed a situation where a purchaser who has no independent knowledge of the qualities or expected performance of a siding may be deceived because the manufacturer deceived a person, such as a builder, architect, or contractor, who reasonably should have correct knowledge. Shannon, 208 Ill. 2d at 526, 805 N.E.2d at 218. The Illinois Supreme Court has also recognized that the omission or concealment of a material fact in the conduct of trade or commerce constitutes consumer fraud. Connick v.

Suzuki Motor Co., 174 Ill. 2d 482, 504, 675 N.E.2d 584, 595 (1996). A material fact exists where a buyer would have acted differently if he had known the information or if the concealed fact concerned the type of information on which a buyer would be expected to rely in making a decision regarding the purchase of the product. Connick, 174 Ill. 2d at 505, 675 N.E.2d at 595. In this case, the deception alleged in the complaint is concealment by silence. This type of deception falls within the coverage and the purpose of the Consumer Fraud Act. Pappas v. Pella Corp., 363 Ill. App. 3d 795, 844 N.E.2d 995 (2006).

The defendants submit that the case is governed by a line of decisions in which the Illinois Supreme Court held that deceptive advertising could not be the proximate cause of damages unless the plaintiff was actually deceived by the misrepresentation, and they cite Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100, 835 N.E.2d 801 (2005); Price v. Philip Mor ris, Inc., 219 Ill. 2d 182, 848 N.E.2d 1 (2005); and Zekman, 182 Ill. 2d 359, 695 N.E.2d 853, among others.

In the cases relied upon by the defendants, the alleged deceptions arise from affirmative representations, such as specific promises or a deceptive advertisement. In those types of cases, the supreme court has said that in order to establish proximate cause, the plaintiff must allege and show that he was actually deceived by the misrepresentation. Avery, 216 Ill. 2d at 200, 835 N.E.2d at 861; Zekman, 182 Ill. 2d at 375-76, 695 N.E.2d at 861-62. There is another line of cases involving concealment by silence.

In those types of cases, the courts have found it sufficient where there was proof that the defendant’s deception, whether made directly or indirectly, was committed with the intent that it influence the plaintiffs action and that if the plaintiff had known of the concealed information, she would not have purchased the product. Connick, 174 Ill. 2d at 504-05, 675 N.E.2d at 595; Pappas, 363 Ill. App. 3d at 804-06, 844 N.E.2d at 1003-04.

The contrasts in the aforementioned cases demonstrate that for purposes of satisfying the elements of a cause of action under the Consumer Fraud Act, there is a very fine but significant distinction between cases involving an affirmative deception and a deception by concealment. As to the case at bar, the plaintiffs action falls within the latter category. Following the reasoning and bases underlying the decisions in Shannon and Connick, we answer the first and third questions in the affirmative.

The second question, as drafted, appears to be a mixed question of fact and law and, therefore, not a proper question under Supreme Court Rule 308. Accordingly, we decline to address it. C.

Summary and Conclusion The Rule 306(a)(8) appeal of the class certification order is hereby dismissed for a lack of jurisdiction. We have answered certified questions I and III in the affirmative. We have determined that certified question II is not a proper question under Supreme Court Rule 308, and therefore we decline to address it. We remand the case to the trial court for further proceedings. Rule 306(a)(8) appeal dismissed; certified questions answered in part; cause remanded. CHAPMAN, J., concurs. A similar cause of action was asserted in Jensen v. Bayer AG, 371 Ill. App. 3d 682, 862 N.E.2d 1091 (2007). In Jensen, a

summary judgment was granted for the defendant because the plaintiff failed to submit some evidence on two elements that are necessary to prove a violation of the Consumer Fraud Act, i.e., that the defendant intended to conceal or that the plaintiff was actually deceived by any omission made by the defendant. Jensen was decided after the parties had an opportunity for discovery on the merits. Aside from recognizing the existence of a cause of action under similar facts, we do not find Jensen to be helpful in regard to our consideration of the certified questions.