2019 IL App (1st) 171543
Ill. App. Ct.2019Background
- Plaintiffs David Gassman and A&G Foods paid $90 each to the Cook County Circuit Clerk to file petitions to vacate dismissals for want of prosecution (DWPs), which are nonfinal interlocutory orders under Illinois law.
- Plaintiffs sued the Clerk seeking mandamus to stop collecting fees for petitions to vacate or modify nonfinal orders and restitution of fees collected; they sought class treatment.
- This court in Gassman I held the statute authorizing the fee (705 ILCS 105/27.2a(g)(2)) applies only to final judgments and final orders, reversing dismissal and remanding.
- After remand the Clerk tendered refunds and issued a Smeltzer memo revising fee policy; the trial court dismissed the suit as moot based on the tender and policy change.
- Plaintiffs produced docket entries showing post-memo fee collections for vacating DWPs and challenged the refund check as payable to the wrong law firm (thus nonnegotiable); they appealed the mootness dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Clerk’s policy change moots the case | Memo still permits charging fees for vacaturs of dismissals (includes nonfinal DWPs); evidence fees were still charged | Memo complies with Gassman I and stops unlawful fee collection | Not moot: memo still authorizes fees for some nonfinal dismissals and post-memo charges occurred |
| Whether the Clerk’s tender of refunds moots the case | Refund check was payable to wrong firm (nonnegotiable) and did not provide full relief | Tender of full monetary relief to named plaintiffs moots claim before class certification | Not moot: tender defective because check was made payable to wrong entity and thus not actual production |
| Whether potential cure by endorsement defeats defect | Clerk says check could be signed over to current counsel | Plaintiffs contend endorsement would violate trust-account rules and defendant offered no rebuttal | Endorsement possibility does not cure defective tender; Clerk had duty to make correct tender |
| Need to decide public-interest exception to mootness | Plaintiffs alternatively invoked the exception | Clerk did not rely on it to moot the case | Court did not reach the exception because case was not moot on other grounds |
Key Cases Cited
- S.C. Vaughan Oil Co. v. Caldwell, 181 Ill. 2d 489 (explains a dismissal for want of prosecution is nonfinal until refiling period expires)
- Barber v. American Airlines, Inc., 241 Ill. 2d 450 (tender to named plaintiff before class certification can moot class claim)
- Ballard RN Center, Inc. v. Kohll’s Pharmacy & Homecare, Inc., 2015 IL 118644 (same; discussion of mootness and class certification)
- In re Marriage of Donald B., 2014 IL 115463 (standard for mootness: no actual controversy or inability to grant effectual relief)
- Steinbrecher v. Steinbrecher, 197 Ill. 2d 514 (mootness and advisory-opinion prohibitions)