                             2018 IL App (2d) 170498 

                                  No. 2-17-0498

                            Opinion filed July 13, 2018 

______________________________________________________________________________

                                              IN THE


                               APPELLATE COURT OF ILLINOIS


                              SECOND DISTRICT

______________________________________________________________________________

RICHARD ALDERSON and ANN                  ) Appeal from the Circuit Court
ALDERSON, Individually and on Behalf      ) of Lake County.
of All Others Similarly Situated,         )
                                          )
         Plaintiffs-Appellants,           )
                                          )
v.                                        ) No. 17-L-87
                                          )
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,        ) Honorable
                                          ) Margaret J. Mullen,
         Defendant-Appellee.              ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.
       Justices Jorgensen and Burke concurred in the judgment and opinion.

                                             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
2018 IL App (2d) 170498


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 (1998); see also Flores v. Dugan, 91 Ill. 2d

108, 112 (1982); Franzese v. Trinko, 66 Ill. 2d 136, 138-40 (1977); Kutnick v. Grant, 65 Ill. 2d

177, 181 (1976); Brite Lights, Inc. v. Gooch, 305 Ill. App. 3d 322, 326 (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, 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



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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.



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¶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 (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 (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. “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. 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; see also Ballard RN Center, Inc. v. Kohll’s Pharmacy & HomeCare, Inc.,

2015 IL 118644, ¶¶ 42-45 (applying Barber).




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¶ 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; see also Gatreaux v. DKW Enterprises,

LLC, 2011 IL App (1st) 103482, ¶ 29 (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. 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 (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 basically sought and more, considering that they never

requested a refund of their filing fees for the instant case ($291) and yet have received a check



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for that amount. See Grimes v. Sage Telecom Communications, LLC, 2018 IL App (1st) 171455,

¶ 20 (noting that there is no statutory requirement that “to be effective, the tender must include

the court costs incurred by the plaintiff in initiating the litigation”).

¶ 12    In addition, the Aldersons put the cart before the horse when they sought to treat

Weinstein, in her official capacity, as a “representative” defendant. No allegation was made in

the complaint as to why Weinstein is a representative for any other circuit clerk, let alone all

other circuit clerks in the state, none of whom were joined as defendants. Cf. Gaffney v. Shell Oil

Co., 19 Ill. App. 3d 987, 994 (1974) (expressing doubt about the validity of naming one

defendant as a group representative). And, so, as we have said, the Aldersons have essentially

received all that they are entitled to and then some. Their purported nonacceptance

notwithstanding, pursuant to Barber, this case is indeed moot.

¶ 13    We note that, for purposes of mootness, our supreme court has consistently relied on

decisions of the Seventh Circuit Court of Appeals that made no distinction between accepted and

rejected offers of settlement. See, e.g., Ballard, 2015 IL 118644, ¶ 34 (citing Barber, 241 Ill. 2d

at 456-57, citing Susman v. Lincoln American Corp., 587 F.2d 866, 869 (7th Cir. 1978)). The

Aldersons point out that the Seventh Circuit has since taken a different tack in Chapman v. First

Index, Inc., 796 F.3d 783, 786-87 (7th Cir. 2015). There, the court adopted Justice Kagan’s

dissent in Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66 (2013), holding that, without

acceptance, mere offers do not deprive a court of jurisdiction, because relief is still possible. In

other words, only accepted offers of settlement can moot a plaintiff’s claims. We would add that

after Chapman a majority of the United States Supreme Court adopted Justice Kagan’s position

as well, explaining that:




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       “ ‘When a plaintiff rejects such an offer—however good the terms—her interest in the

       lawsuit remains just what it was before. And so too does the court’s ability to grant her

       relief. An unaccepted settlement offer—like any unaccepted contract offer—is a legal

       nullity, with no operative effect. As every first-year law student learns, the recipient’s

       rejection of an offer “leaves the matter as if no offer had ever been made.” Minneapolis

       & St. Louis R. Co. v. Columbus Rolling Mill, 119 U.S. 149, 151 *** (1886). [The rule in

       question] specifies that “[a]n unaccepted offer is considered withdrawn.” Fed. Rule Civ.

       Proc. 68(b). So assuming the case was live before—because the plaintiff had a stake and

       the court could grant relief—the litigation carries on, unmooted.’ ” Campbell-Ewald Co.

       v. Gomez, 577 U.S. ___, ___ 136 S. Ct. 663, 670 (2016) (quoting Genesis Healthcare,

       569 U.S. at 81 (Kagan, J., dissenting)).

¶ 14   Our supreme court has not yet considered whether, in light of Campbell-Ewald, Illinois

courts should continue to draw no distinction between accepted and rejected settlement offers

when determining whether a case is moot. That question, as Justice Kagan points out, has a

number of practical consequences for both individual litigants and certified-class plaintiffs. See

Genesis, 569 U.S. at 80-81 (Kagan, J., dissenting). Relevant to Illinois law, we note that the

approach adopted in Campbell-Ewald appears to be harmonious with recent pronouncements on

the constitutional dimension of subject-matter jurisdiction in Illinois circuit courts. That is, the

concept of “tender” is defined by statute (see Grimes, 2018 IL App (1st) 171455, ¶ 21 (citing 735

ILCS 5/5-126 (West 2016))), and as our supreme court has repeatedly explained, compliance

with statutory requirements vel non does not affect a circuit court’s constitutional authority to

hear and determine a given case (see McCormick v. Robertson, 2015 IL 118230, ¶ 23; In re Luis




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R., 239 Ill. 2d 295, 300-02 (2010); Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc.,

199 Ill. 2d 325, 340-41 (2002)).

¶ 15   That said, even if Illinois were to adopt the Campbell-Ewald approach, any distinction

between accepted and rejected offers would likely matter little in this case. As noted earlier, the

Aldersons concede that their attorney in the arbitration case (i.e., their agent) cashed Weinstein’s

$50 refund check for the filing fee. The amount of the check represented the full damages the

Aldersons had requested, and its cashing could be reasonably construed as an acceptance of the

settlement—or at the very least, a failure to reject it. See generally Bruemmer v. Compaq

Computer Corp., 329 Ill. App. 3d 755, 761 (2002); Hillenbrand v. Meyer Medical Group, S.C.,

308 Ill. App. 3d 381, 389 (1999). The Aldersons appear to claim that their prior attorney cashed

the check without their knowledge or authorization. If true, that might mean that there is a

controversy between them and their attorney; but what is clear is that there is no longer a

controversy between them and Weinstein. At any rate, under Barber, this case is moot.

¶ 16   The Aldersons’ final argument is that, even if their complaint is moot (and as we have

explained, it is), their claims should still be considered under two exceptions to the mootness

doctrine. True enough, “Illinois courts have found exceptions to the mootness doctrine in actions

where there is substantial public interest [citation] or where the issues were likely to recur but

unlikely to last long enough to allow appellate review to take place [citation].” Wheatley, 99 Ill.

2d at 485. However, neither exception applies in this case.

¶ 17   As to the first exception, this case simply is not a matter of substantial public concern.

Although this case did involve a public official, a decision on its merits would be of no more

guidance to circuit clerks than that already issued by the Appellate Court, First District, in

Gassman, 2017 IL App (1st) 151738. Put differently, “[t]here are no public officers who need an



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authoritative resolution of the question presented” in this case “in order to perform their duties”

(Fisch v. Loews Cineplex Theatres, Inc., 365 Ill. App. 3d 537, 542-43 (2005))—particularly after

Gassman.

¶ 18   We also reject the Aldersons’ assertion—under the public-interest exception, under the

harms-evading-review exception, and as part of their argument that they need a writ of

mandamus—that we should not take Weinstein at her word that she will not continue to collect

the fee. As we have explained before, when the defendant is a public official, “greater stock is

placed in their acts of self-correction, as long as they appear genuine.” La Salle National Bank,

N.A. v. City of Lake Forest, 297 Ill. App. 3d 36, 45 (1998). In this case, Weinstein’s actions, as

recounted in her affidavit, seem sincere enough, and we take her at her word.

¶ 19   Moreover, we are not persuaded by the Aldersons’ reliance on the litigation in another

case, McGovern v. Brin, 16-CH-1249 (Cir. Ct. Lake County), a suit brought against Weinstein’s

predecessor in office. As best we can determine from the limited record the Aldersons have

provided of the McGovern proceedings, it appears that in the McGovern suit the plaintiffs failed

to appear in a foreclosure action, and a default judgment of foreclosure was entered against them.

Six months later, when the McGoverns sought to vacate the judgment in court, Weinstein’s

office charged them a $75 fee to do so. The McGoverns later sued Weinstein on grounds similar

to the Aldersons’. Contrary to the Aldersons’ claim, however, the McGovern matter does not

show that Weinstein has adopted “inconsistent positions as to her ‘new policy.’ ” Again, a DWP

becomes final one year after it is entered. S.C. Vaughan Oil, 181 Ill. 2d at 506. A judgment of

foreclosure, however, although not appealable without an Illinois Supreme Court Rule 304(a)

(eff. Feb. 26, 2010) finding, “is final as to the matters it adjudicates.” (Emphasis added.) EMC

Mortgage Corp. v. Kemp, 2012 IL 113419, ¶ 11. Thus, while it is clear that section 27.2a(g)(1)



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of the Clerks of Courts Act did not authorize the clerk to collect a filing fee from the Aldersons

to vacate their DWP, it is far from clear that collecting a filing fee from the McGoverns was

unwarranted.

¶ 20      The Aldersons’ reliance on the exception to mootness for cases capable of repetition that

elude judicial review is also untenable. For one thing, the exception generally applies when the

subject is likely to arise again between the same litigants (see Weinstein v. Bradford, 423 U.S.

147, 149 (1975); Sosna v. Iowa, 419 U.S. 393, 399-400 (1975)), and we have no reason to think

that the Aldersons will face an erroneous filing fee to vacate a DWP in the future, whether by

Weinstein or by others in her name. And, finally, as the existence of the McGovern litigation

indicates, the erroneous collection of filing fees does not foreshadow a special, evanescent

controversy that threatens to evaporate before it could be addressed through ordinary judicial

review.

¶ 21      Pursuant to Barber, the Aldersons’ case is moot, and no exception applies to save it.

Accordingly, the judgment of the circuit court of Lake County, which dismissed the complaint, is

affirmed.

¶ 22      Affirmed.




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