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                                    Appellate Court                          Date: 2019.06.03
                                                                             11:20:33 -05'00'




             Gassman v. Clerk of the Circuit Court, 2019 IL App (1st) 171543



Appellate Court         DAVID GASSMAN and A&G FOODS, INC., Plaintiffs-Appellants,
Caption                 v. THE CLERK OF THE CIRCUIT COURT OF COOK COUNTY,
                        in Her Official Capacity, Defendant-Appellee.



District & No.          First District, Second Division
                        Docket No. 1-17-1543



Filed                   March 12, 2019



Decision Under          Appeal from the Circuit Court of Cook County, No. 14-CH-12269; the
Review                  Hon. Rodolfo Garcia, Judge, presiding.



Judgment                Reversed and remanded.


Counsel on              David Novoselsky, of Novoselsky Law Offices, P.C., of Waukegan,
Appeal                  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.
     Panel                     PRESIDING JUSTICE MASON delivered the judgment of the court,
                               with opinion.
                               Justices Pucinski and Hyman concurred in the judgment and opinion.


                                                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 (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 (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



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                    “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.
       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

           The motion was originally filed on February 21, 2017, before this court’s mandate issued on
           1

       March 6, 2017. The trial court later issued an order stating that it would treat the motion as having
       been filed on March 7, 2017.

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       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 (quoting In re Alfred H.H., 233 Ill. 2d 345, 351 (2009)). A claim is moot “ ‘when it
       involves no actual controversy or the reviewing court cannot grant the complaining party
       effectual relief.’ ” In re Marriage of Donald B., 2014 IL 115463, ¶ 23 (quoting Steinbrecher v.
       Steinbrecher, 197 Ill. 2d 514, 522-23 (2001)). Whether a claim is moot is an issue we review
       de novo. Preferred Personnel Services, Inc. v. Meltzer, Purtill & Stelle, LLC, 387 Ill. App. 3d
       933, 938 (2009).



                                                   -4-
¶ 19       We begin by considering the changes in the Clerk’s fee collection policy. The Clerk argues
       that the Smeltzer memo complies with our mandate in Gassman I and, in particular, “show[s]
       that the Circuit Clerk’s office directed personnel that they may not charge a fee to vacate a
       dismissal for want of prosecution.” We disagree.
¶ 20       As noted, in Gassman I we held that section 27.2(a)(g) of the Act only authorizes the
       Clerk’s office to charge a fee for petitions to vacate or modify final judgments and final orders
       of court, not interlocutory orders. By contrast, according to the Smeltzer memo, a fee should
       not be charged “[f]or a petition to vacate or modify a judgment or order that is anything other
       than the judgment or order that disposes the case,” but should be charged for “[p]etitions to
       vacate or modify a dismissal.” Not all dismissals are final orders of the court. See People v.
       Vari, 2016 IL App (3d) 140278, ¶ 10 (“It is a general rule that the dismissal of a complaint
       without prejudice is not final and appealable.”). Of particular relevance to this case, it is well
       established that “until the time of the expiration of the period for refiling, [a] DWP remains a
       nonappealable interlocutory order.” S.C. Vaughan Oil, 181 Ill. 2d at 507; see also
       BankFinancial, FSB v. Tandon, 2013 IL App (1st) 113152, ¶ 30 (“A DWP order only becomes
       a final order after the one-year right to refile expires.”). Likewise, voluntary dismissals under
       section 2-1009 of the Code (735 ILCS 5/2-1009 (West 2016)) may also be refiled under section
       13-217 (735 ILCS 5/13-217 (West 2016)) and are therefore nonfinal until the right to refile
       expires. Taylor, Bean & Whitaker Mortgage Co. v. Cocroft, 2018 IL App (1st) 170969, ¶ 53.
¶ 21       Thus, although the Smeltzer memo may have been intended to comply with our mandate in
       Gassman I, its instruction to collect fees for all petitions to vacate or modify “dismissal[s]” still
       encompasses some nonfinal orders. This is corroborated by plaintiffs’ evidence that on at least
       two occasions following the supposed change in the Clerk’s policy, the Clerk’s office charged
       a fee for petitions to vacate DWPs, the precise situation we found unlawful in Gassman I.
       Accordingly, the change in the Clerk’s fee collection policy as reflected in the Smeltzer memo
       does not render plaintiffs’ claims moot.
¶ 22       The Clerk next argues that plaintiffs’ claims are moot because on February 21, 2017, the
       Clerk tendered to them a check for $617, comprising the $180 in fees that form the basis for
       this litigation plus $337 in trial court filing fees and $100 in appellate court fees for the present
       action. The check was made payable to “David Gassman and A. N. Anymous c/o Novoselsky
       Law Office.” Plaintiffs argue that the tender was defective because the check could not be
       negotiated, insofar as it was made to the wrong law firm, i.e., Novoselsky Law Office instead
       of Jonathan Novoselsky, P.C. Plaintiffs also argue that the tender did not provide the full relief
       they sought in their action.
¶ 23       In general, a class action suit is rendered moot when defendant makes a tender of relief
       before plaintiffs move for class certification. Ballard RN Center, Inc. v. Kohll’s Pharmacy &
       Homecare, Inc., 2015 IL 118644, ¶ 34 (quoting Barber v. American Airlines, Inc., 241 Ill. 2d
       450, 456-57 (2011)); see also Gatreaux v. DKW Enterprises, LLC, 2011 IL App (1st) 103482,
       ¶ 28 (a valid tender will moot a case even if plaintiffs do not accept it). A tender is “an
       unconditional offer of payment consisting of the actual production of a sum not less than the
       amount due on a particular obligation.” (Internal quotation marks omitted.) G.M. Sign, Inc. v.
       Swiderski Electronics, Inc., 2014 IL App (2d) 130711, ¶ 28.
¶ 24       As noted, plaintiffs allege that the Clerk’s tender was defective because it was made
       payable to Novoselsky Law Office instead of Jonathan Novoselsky, P.C. The relevant facts are
       as follows. On July 25, 2014, plaintiffs filed their original complaint, represented by David

                                                     -5-
       Novoselsky as “Novoselsky Law Offices, P.C.” Plaintiffs’ filings up to and including their
       notice of appeal consistently listed as counsel both David and Jonathan Novoselsky under
       “Novoselsky Law Offices.”
¶ 25       During the pendency of the appeal, David withdrew as plaintiffs’ counsel. Jonathan
       Novoselsky then appeared for appellants as “Jonathan Novoselsky, P.C.” at a different address
       and with different contact information. After we remanded the cause, on February 21, 2017,
       the Clerk’s office tendered the refund check to “David Gassman and A. N. Anymous c/o
       Novoselsky Law Office.” On the same day, the Clerk moved to dismiss plaintiffs’ complaint as
       moot, sending notice to Jonathan at “Jonathan Novoselsky, P.C.”
¶ 26       Under these facts, we find that the Clerk’s tender to Novoselsky Law Office was defective.
       Plaintiffs allege that at the time of the tender, Jonathan was representing plaintiffs as Jonathan
       Novoselsky, P.C. The Clerk provides no record citation to the contrary, and she was apparently
       aware of Jonathan’s status as plaintiffs’ counsel, since she correctly sent notice of her motion
       to dismiss to Jonathan at his firm. Moreover, if there was any uncertainty as to whom the
       tender should be made, it was incumbent upon the Clerk to clarify that fact before making the
       tender. Poliszczuk v. Winkler, 2011 IL App (1st) 101847, ¶ 25 (it is the debtor’s duty to ensure
       that tender is sufficient). Thus, because the check was made payable to the wrong law firm and
       was not negotiable, there was no “actual production” (internal quotation marks omitted) (G.M.
       Sign, 2014 IL App (2d) 130711, ¶ 28) of the amount due, and plaintiffs’ claim was not mooted.
¶ 27       The Clerk argues that even if the check was made payable to the wrong law firm, David
       could have signed the check over to Jonathan Novoselsky, P.C. Plaintiffs argue that such an
       action would have been contrary to the Illinois Rules of Professional Conduct; specifically,
       Rule 1.15 (Ill. R. Prof’l Conduct (2010) R. 1.15(a) (eff. July 1, 2015)) requires that all client
       funds be deposited in a client trust account. Notably, the Clerk does not respond to this
       contention, much less cite any authority as to why Rule 1.15 would not apply in this case. Even
       more fundamentally, we fail to see why, if a defendant proffers a tender to the wrong entity,
       that error would be cured by the possibility that the entity might later deliver the tender to the
       correct entity. Consequently, we find that the Clerk’s tender was defective and did not moot
       plaintiffs’ action.2

¶ 28                                          CONCLUSION
¶ 29       We find that the present action is not moot, since (i) there is evidence that the Clerk’s
       policy and practice with regard to fee collection do not comply with our mandate in Gassman I
       and (ii) the Clerk’s tender of funds to plaintiffs was deficient, insofar as the check could not be
       negotiated. Therefore, we need not decide whether the public-interest exception to the
       mootness doctrine applies. We reverse the trial court’s order dismissing the case as moot and


           2
            Plaintiffs also argue that the Clerk’s tender did not provide them full relief, since plaintiffs
       sought not only the return of the fees they personally paid but a writ of mandamus compelling the
       Clerk to stop collecting fees for petitions to vacate or modify nonfinal orders and further compelling
       the return of all such fees collected in the past. See Barber, 241 Ill. 2d at 454 (a claim is moot where
       “a defendant tenders the named plaintiff the relief requested before a motion for class certification is
       filed” (emphasis added)). Because we find the Clerk’s tender defective, we need not address this
       contention.

                                                      -6-
       remand for further proceedings.

¶ 30      Reversed and remanded.




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