Gassman v. Clerk of the Circuit Court of Cook Cnty.

2019 IL App (1st) 171543

126 N.E.3d 451

430 Ill.Dec. 363

David GASSMAN and A & G Foods, Inc., Plaintiffs-Appellants,

v.The CLERK OF THE CIRCUIT COURT OF COOK COUNTY, in Her Official Capacity, Defendant-Appellee.

No. 1-17-1543

Appellate Court of Illinois, First District, SECOND DIVISION.

March 12, 2019

David Novoselsky, of Novoselsky Law Offices, P.C., of Waukegan, and Joseph E. Tighe, of Alan J. Mandel, Ltd., of Skokie, for appellants.

Kimberly M. Foxx, State’s Attorney, of Chicago (Cathy McNeill Stein, Sisavanh B. Baker, and Marie D. Spicuzza, Assistant State’s Attorneys, of counsel), for appellee.

PRESIDING JUSTICE MASON delivered the judgment of the court, with opinion.

¶ 1 Section 27.2a(g)(2) of the Clerks of Courts Act (Act) imposes a fee for filing a petition to vacate or modify "any final judgment or order of court." 705 ILCS 105/27.2a(g)(2) (West 2012). In separate underlying cases, the Clerk of the Circuit Court of Cook County (Clerk) charged plaintiffs David Gassman and A & G Foods, Inc. (A & G), a fee for filing a petition to vacate a nonfinal order. They brought this suit for mandamus and other relief against the Clerk, arguing that such fees were not authorized under the Act. In Gassman v. Clerk of the Circuit Court , 2017 IL App (1st) 151738, 410 Ill.Dec. 787, 71 N.E.3d 783 ( Gassman I ), we agreed with plaintiffs, holding that the word "final" modifies both of the terms "judgment" and "order," and therefore the statute does not authorize the Clerk to charge a fee for filing a petition to vacate a nonfinal order.

¶ 2 On remand, the Clerk tendered to plaintiffs a refund of the disputed fees, and she also represented to the trial court that the Clerk's office had changed its fee-collection policies to comply with Gassman I . On this basis, the trial court dismissed the complaint as moot.

¶ 3 Plaintiffs now appeal, arguing that (i) there is still an active controversy between the parties because the Clerk continues to collect improper fees notwithstanding her alleged change in policy, (ii) the Clerk's tender was defective because the check she provided was not negotiable and it otherwise failed to provide plaintiffs the full relief they sought, and (iii) the public-interest exception to the mootness doctrine applies. We agree with plaintiffs' first two contentions and reverse.

¶ 4 BACKGROUND

¶ 5 On November 22, 2013, in separate underlying cases, Gassman and A & G were each charged a $ 90 fee for filing a petition to vacate a dismissal for want of prosecution (DWP), which is a nonfinal order. 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) (a DWP does not become final until the expiration of plaintiff's one-year absolute right to refile under section 13-217 of the Code of Civil Procedure ( 735 ILCS 5/13-217 (West 1992) ) ). Plaintiffs paid the fees under protest and then filed the instant suit "individually and on behalf of all others similarly situated." (In the original complaint, A & G was referred to as "A.N. Anymous.") In count I, plaintiffs sought a writ of mandamus compelling the Clerk to cease and desist the collection of fees not authorized by the Act and also compelling her to return all fees previously collected for petitions to vacate dismissals for want of prosecution. In count II, plaintiffs sought an accounting of all fees that the Clerk collected for petitions to vacate DWPs.

¶ 6 The Clerk moved to dismiss, arguing that section 27.2a(g) of the Act applies to any order of court and also arguing that plaintiffs' mandamus action was barred by tort immunity and res judicata . The trial court granted the motion to dismiss. In Gassman I , we reversed, holding that

"Gassman has stated a cause of action for mandamus , since (1) section 27.2a(g) of the Act does not authorize the Clerk to charge fees for petitions to vacate or modify nonfinal orders and (2) Gassman is entitled to pursue a mandamus action against the Clerk to compel her to comply with that statutory provision." Gassman I , 2017 IL App (1st) 151738, ¶ 38, 410 Ill.Dec. 787, 71 N.E.3d 783.

We additionally directed plaintiffs to file an amended complaint omitting any fictitious names. Id. ¶ 39. But we declined to express an opinion on "any issues not directly addressed herein, such as whether this case meets the requirements for class certification or the availability of restitutionary relief against the Clerk in circuit court." Id.

¶ 7 Our opinion in Gassman I was filed on January 17, 2017. On March 7, 2017,¹ the Clerk moved to dismiss plaintiffs' amended complaint as moot under section 2-619 of the Code of Civil Procedure ( 735 ILCS 5/2-619 (West 2012) ). She argued that no further controversy remained because her office tendered the disputed fees to plaintiffs and "clarifie[d]" the Clerk's policy regarding collection of filing fees to comply with Gassman I .

¶ 8 In support, the Clerk attached the affidavit of Kelly Smeltzer, general counsel for the Clerk's office. Smeltzer averred that on February 21, 2017, the Clerk's office refunded all court fees to plaintiffs' counsel, namely the $ 180 in fees that form the basis for this litigation, plus $ 337 in trial court filing fees and $ 100 in appellate court fees.

¶ 9 The Clerk additionally attached a memo that Smeltzer sent to her staff on February 21, 2017, reflecting changes in the Clerk's fee collection policy. The memo provides, in relevant part:

"As a reminder, fees for petitions to vacate or modify should not be charged in the following circumstances:

* * *

7. For a petition to vacate or modify a judgment or order that is anything other than the judgment or order that disposes the case." (Emphasis in original.)

The memo gives a nonexclusive list of petitions for which a fee may be charged, including petitions to vacate or modify "a dismissal," a directed verdict, disposal of a case, a judgment for plaintiff or for defendant, a nonsuit on the case, and an order granting a motion for summary judgment. Finally, the memo provides:

"[I]f a customer notifies our staff that they believe that a petition to vacate or modify fee was assessed in error, instruct your staff to send the customer to the Legal Department if they are on the premises, or to call (312) 603-5400 if not. The Legal Department will determine whether an error was made and a refund should be processed."

¶ 10 Also on March 7, 2017, plaintiffs moved to certify a class of all litigants required to pay a fee to the Clerk for filing a motion relating to any nonfinal order. The trial court continued this motion pending a ruling on the Clerk's motion to dismiss.

¶ 11 On March 21, 2017, plaintiffs filed an amended complaint identifying A & G Foods in place of the fictitious "A.N. Anymous." Plaintiffs also filed a response to the Clerk's motion to dismiss in which they asserted that "there has been no change whatsoever in the policy of the [Circuit] Clerk of Cook County to conform the practice and the conduct of her Office to the explicit mandate of the Appellate Court." Plaintiffs pointed out that Smeltzer's memo does not prohibit collection of fees for petitions to vacate DWPs. On the contrary, the memo instructs personnel to charge fees for "[p]etitions to vacate or modify a dismissal"—which includes DWPs.

¶ 12 In support of their contention that the Clerk continues to charge fees for petitions to vacate DWPs, plaintiffs attached electronic docket entries and motions from two circuit court cases.

A & G Foods, Inc. v. Pappas Accounting Group, Inc., No. 2016 L 10280 (Cir. Ct. Cook County), was dismissed for want of prosecution on January 26, 2017. A & G filed a motion to vacate the DWP on March 7, 2017, and was charged and paid a $ 90 fee to the Clerk under protest. Similarly, D'Agostino v. Whitestock, Inc., No. 2015 L 11135 (Cir. Ct. Cook County), was dismissed for want of prosecution on January 4, 2017. D'Agostino moved to vacate the DWP on March 7, 2017, and also was charged and paid a $ 90 fee under protest.

¶ 13 Plaintiffs additionally argued that the public-interest exception to the mootness doctrine applied, because there was a public interest in preventing the continued misapplication of the fee statute to present and future litigants and because the issue was likely to recur, as demonstrated by "multiple trial and reviewing court decisions" addressing the issue.

¶ 14 Finally, plaintiffs argued that the Clerk's tender of fees was defective because the check could not be negotiated. The check was made payable to "David Gassman and A. N. Anymous c/o Novoselsky Law Office." Plaintiffs argued that the tender should instead have been made to "Jonathan Novoselsky, P.C."

¶ 15 On May 23, 2017, the trial court granted the Clerk's motion to dismiss the action as moot. Plaintiffs timely appealed.

¶ 16 ANALYSIS

¶ 17 Plaintiffs argue that their claims are not rendered moot either by the Clerk's change in policy or by the Clerk's tender of fees. Regarding the former, plaintiffs contend that, on its face, the Smeltzer memo permits collection of fees for petitions to vacate DWPs and there is evidence that the Clerk's office continues to collect such fees. Regarding the latter, plaintiffs contend that the check tendered by the Clerk's office was not negotiable because it was made payable to the wrong law firm. They also contend that a refund of their trial and appellate court fees is insufficient to make them whole. Finally, in the alternative, plaintiffs argue that the public-interest exception to the mootness doctrine applies.

¶ 18 " ‘As a general rule, courts in Illinois do not decide moot questions, render advisory opinions, or consider issues where the result will not be affected regardless of how those issues are decided.’ " Benz v. Department of Children & Family Services , 2015 IL App (1st) 130414, ¶ 31, 389 Ill.Dec. 695, 27 N.E.3d 187 (quoting In re Alfred H.H. , 233 Ill. 2d 345, 351, 331 Ill.Dec. 1, 910 N.E.2d 74 (2009) ). A claim is moot " ‘when it involves no actual...