Alderson v. Weinstein

2018 IL App (2d) 170498

117 N.E.3d 401

427 Ill.Dec. 16

Richard ALDERSON and Ann Alderson, Individually and on Behalf of All Others Similarly Situated, Plaintiffs-Appellants,

v.Erin C. WEINSTEIN, in Her Official Capacity as Clerk of the Circuit Court of Lake County and as a Representative of All Illinois Circuit Court Clerks, Defendant-Appellee.

No. 2-17-0498

Appellate Court of Illinois, Second District.

Opinion filed July 13, 2018

David A. Novoselsky, of Novoselsky Law Offices, P.C., of Waukegan, for appellants.

Lisa Madigan, Attorney General, of Chicago (David L. Franklin, Solicitor General, and John Schmidt, Assistant Attorney General, of counsel), for appellee.

JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.

¶ 1 Plaintiffs, Richard and Ann Alderson, brought suit seeking mandamus and "other relief" against defendant, Erin C. Weinstein, in her official capacity as clerk of the circuit court of Lake County and as a representative of all circuit court clerks in the state. The trial court dismissed the Aldersons' complaint as moot and we affirm.

¶ 2 In 2015, the Aldersons filed a complaint in arbitration in the circuit court of Lake County. In January 2016, the Aldersons' complaint was dismissed for want of prosecution—a court order also known as a "DWP." Two weeks later, when the Aldersons sought to vacate the dismissal and reinstate the case, Weinstein's office charged them a $50 fee. The Aldersons' attorney paid the fee; the arbitration case was reinstated, it proceeded to judgment, and it is now closed. Alderson v. Nielson Development Inc., No. 15-AR-832 (Cir. Ct. Lake County). The Aldersons' case against the circuit clerk's office, however, was just beginning.

¶ 3 A section of the Clerks of Courts Act, applicable to Lake County, authorizes the circuit clerk to charge "a minimum of $50 and a maximum of $60" when a party files a "[p]etition to vacate or modify any final judgment or order of court" in most civil cases. 705 ILCS 105/27.2a(g)(1) (West 2016). The key word there is final —that is, that the fee applies only to final judgments—as for some time now it has been absolutely clear that a DWP does not become final until the one-year period to refile a claim has expired. See S.C. Vaughan Oil Co. v. Caldwell, Troutt & Alexander , 181 Ill. 2d 489, 506, 230 Ill.Dec. 209, 693 N.E.2d 338 (1998) ; see also Flores v. Dugan , 91 Ill. 2d 108, 112, 61 Ill.Dec. 783, 435 N.E.2d 480 (1982) ; Franzese v. Trinko , 66 Ill. 2d 136, 138-40, 5 Ill.Dec. 262, 361 N.E.2d 585 (1977) ; Kutnick v. Grant , 65 Ill. 2d 177, 181, 2 Ill.Dec. 313, 357 N.E.2d 480 (1976) ; Brite Lights, Inc. v. Gooch , 305 Ill. App. 3d 322, 326, 238 Ill.Dec. 909, 713 N.E.2d 155 (1999). Accordingly, Weinstein was not statutorily authorized to assess the Aldersons $50 to vacate the DWP as it was not yet final.

¶ 4 The Aldersons filed the instant lawsuit against Weinstein, both in her official capacity and as "a Representative of all Clerks of the Circuit Courts of all Counties within the State of Illinois." As the Aldersons' complaint noted, in Gassman v. Clerk of the Circuit Court , 2017 IL App (1st) 151738, 410 Ill.Dec. 787, 71 N.E.3d 783, the appellate court struck down the practice of collecting a fee to vacate a non-final DWP under a similar provision of the Clerks of Courts Act, one that applies exclusively to Cook County. Accordingly, the first count of the Aldersons' complaint sought a writ of mandamus compelling Weinstein, and all other circuit clerks, to "cease the collection of any fees" and return all previously collected fees for the filing of a petition challenging any court order "that is not final." The second count sought an accounting from Weinstein and all other circuit clerks for all fees collected for petitions to vacate DWPs. The Aldersons also asked the court to treat their complaint as a "class action" and to permit "recovery on behalf of all litigants who have paid the fees in question" to Weinstein and all other circuit clerks.

¶ 5 Shortly after the Aldersons filed suit, Weinstein sent a $50 refund check to the Aldersons' attorney in the arbitration case and a check for $291 to the Aldersons' current attorney—a refund for the filing fees for the instant case. The arbitration attorney cashed Weinstein's $50 check; however, it appears that the Alderson's present attorney has not cashed the check for $291. In any event, after Weinstein issued the checks, she filed a motion to dismiss the Aldersons' complaint as moot. See 735 ILCS 5/2-619(a)(9) (West 2016). Attached to the motion was an affidavit from Weinstein that recited the foregoing and further stated that her office would no longer charge a filing fee for any petition or motion seeking to vacate or modify a DWP. Based on her affidavit, Weinstein's motion stated that there was nothing left to the Aldersons' suit; they had received everything they were entitled to, and the case was now moot.

¶ 6 After the motion to dismiss was filed, the Aldersons filed a motion requesting a hearing on class certification (see id. §§ 2-801, 2-802), as well as a motion for judgment on the pleadings (id. § 2-615(e) ). The Aldersons further asserted that their case was not moot, because they had not received "full relief"—namely, (1) Weinstein's consent to a mandamus order compelling her to issue a refund and enjoining her from collecting filing fees for pleadings challenging DWPs, (2) a similar order applicable to all other circuit clerks in the state, and (3) an accounting from Weinstein and all other circuit clerks. Finally, the Aldersons asserted that, even if Weinstein's tender was sufficient, the case could proceed under one of two exceptions to the mootness doctrine.

¶ 7 The trial court determined that the case was moot and that none of the exceptions applied. The Aldersons appeal and we affirm.

¶ 8 At present, Illinois law draws no distinction between an accepted offer of tender and an unaccepted offer of tender. For example, in Wheatley v. Board of Education of Township High School District 205 , 99 Ill. 2d 481, 77 Ill.Dec. 115, 459 N.E.2d 1364 (1984), where a class of teachers sued the school board that had dismissed them, the court held that the named plaintiffs' claims were mooted when they accepted the school board's offer of reemployment. However, in Barber v. American Airlines, Inc. , 241 Ill. 2d 450, 350 Ill.Dec. 535, 948 N.E.2d 1042 (2011), the court held that the defendant airline's offer to refund the $40 checked-baggage fee (i.e. , the consumer plaintiff's only alleged damages) mooted the plaintiff's claims, even where the offer was rejected by the plaintiff's counsel. So, for the purpose of evaluating mootness in this case, it does not matter that the Aldersons claim that they have not accepted Weinstein's offer. See id.

¶ 9 In Barber , our supreme court held that "the important consideration in determining whether a named representative's claim is moot is whether that representative filed a motion for class certification prior to the time when the defendant made its tender." Id. at 456, 350 Ill.Dec. 535, 948 N.E.2d 1042. "Where the named representative has done so, and the motion is thus pending at the time the tender is made, the case is not moot, and the circuit court should hear and decide the motion for class certification before deciding whether the case is mooted by the tender." Id. at 456-57, 350 Ill.Dec. 535, 948 N.E.2d 1042. However, where, as here, the offer was made before a motion for class certification was filed, "the interests of the other class members are not before the court [citation], and the case may properly be dismissed." Id. at 457, 350 Ill.Dec. 535, 948 N.E.2d 1042 ; see also Ballard RN Center, Inc. v. Kohll's Pharmacy & Homecare, Inc. , 2015 IL 118644, ¶¶ 42-45, 400 Ill.Dec. 620, 48 N.E.3d 1060 (applying Barber ).

¶ 10 Under Barber , then, this is a simple case. The record is clear that the Aldersons had not formally sought class certification before Weinstein tendered them financial relief and filed her motion to dismiss. That was, more or less, the end of this matter; as Barber explains, a putative class action is moot "where the named plaintiffs were granted the relief requested" prior to seeking class certification. Barber , 241 Ill. 2d at 459, 350 Ill.Dec. 535, 948 N.E.2d 1042 ; see also Gatreaux v. DKW Enterprises, LLC , 2011 IL App (1st) 103482, ¶ 29, 354 Ill.Dec. 892, 958 N.E.2d 1088 (explaining that it is the "timing of the tender" that moots a putative class action). But , the Aldersons maintain, they have not received the relief they requested. They point out that their complaint did not request $341 (a refund of the $50 fee plus the $291 filing fees for the instant case) or any specific amount of money or a policy declaration from the circuit clerk. Rather they sought a writ ordering the clerk to refund their fee ($50), as well as an accounting, as well as a similar order applicable to all other circuit clerks in the state. In this regard, the Aldersons have taken a snippet of Barber to an unreasonable extreme. Illinois law holds that a suit is moot where the defendant tenders to the plaintiff "the essential relief demanded." (Emphasis added.) Wheatley , 99 Ill. 2d at 485, 77 Ill.Dec. 115, 459 N.E.2d 1364. In other words, "[m]ootness occurs once the plaintiff has secured what he basically sought " and thus a court's "resolution of the issues could not have any practical effect on the existing controversy." (Emphasis added.) Hanna v. City of Chicago , 382 Ill. App. 3d 672, 677, 320 Ill.Dec. 712, 887 N.E.2d 856 (2008).

¶ 11 Here, the complaint alleged that the Aldersons were charged a $50 fee by the circuit clerk in excess of the clerk's statutory authority; the circuit clerk issued the Aldersons a refund and stated in an affidavit that she had implemented a policy to ensure that others would not be erroneously charged a fee when filing a motion to vacate a DWP. By any reasonable measure, the Aldersons have received what they...