                                                             SIXTH DIVISION
                                                             SEPTEM BER 17, 2010




No. 1-09-1693


AMERICAN SERVICE INSURANCE                                   )   Appeal from the
COMPANY,                                                     )   Circuit Court of
                                                             )   Cook County.
                      Plaintiff-Appellant,                   )
                                                             )
                                                             )
                                                             )
    v.                                                       )      No. 07 CH 06955
                                                             )
THE CITY OF CHICAGO,                                         )
                                                             )
                      Defendant-Appellee.                    )
                                                             )
(Medmarc Casualty Insurance Company, Plaintiff;              )      Honorable
David Carrillo, Sylvia Vargas, and Josue Lamontagne,         )      Sophia Hall,
Defendants.)                                                 )      Judge Presiding.

                       .
         JUSTICE ROBERT E. GORDON delivered the opinion of the court:

         This is an interlocutory appeal. The trial court dismissed the two claims

which plaintiff American Service Insurance Company (ASI) had brought against

defendant City of Chicago, on the ground that these two claims were now moot. In

this interlocutory appeal, plaintiff ASI appeals the dismissal of these two claims.

For the reasons discussed below, we reverse the partial dismissal order and remand
No. 1-09-1693

for proceedings consistent with this opinion.

                                   BACKGROUND

                                     1. Overview

      This appeal involves two separate types of actions. First, the City of Chicago

(City) filed administrative actions against David Carrillo, Sylvia Vargas and Josue

Lamontagne, who were all involved in separate motor vehicle accidents that resulted

in damage to City property. The automobile liability insurance policies belonging to

Carrillo and Vargas were issued by ASI; and Lamontagne’s policy was issued by

Medmarc Casualty Insurance Company (Medmarc).

      The second type of action was a suit filed in the circuit court of Cook County

by ASI and M edmarc in which the insurance companies sought to defeat any

liability by them for coverage for these administrative judgments. It is this suit

which is the subject of this appeal. In this circuit court suit, the defendants were:

the City, which had sought administrative judgments from the policyholders; and the

policyholders themselves.

      In the circuit court action, plaintiff ASI sought and obtained default orders

against the ASI policyholders. As a result, defendant City moved to dismiss ASI’s

claims against it on the grounds that, since plaintiff ASI had already obtained default


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No. 1-09-1693

orders against the policyholder defendants, it lacked standing to pursue the

policyholders’ claims, and that ASI’s claims were now moot. The trial court

granted the motion, which resulted in a partial dismissal of the case.

      The only claims that were dismissed by the trial court were the claims of

plaintiff ASI against defendant City. The claims that were not dismissed were: (1)

plaintiff Medmarc’s claims against the City; (2) plaintiff Medmarc’s claims against

the sole Medmarc policyholder, Josue Lamontagne; and (3) plaintiff ASI’s claims

against the two ASI policyholders, David Carrillo and Sylvia Vargas. Even though

the dismissal was only partial, the trial court found no reason to delay the appeal of

its order and this interlocutory appeal followed.

                                    2. The Plaintiffs

      Plaintiffs ASI and Medmarc are insurance companies that are doing business

in Illinois and that provide policies of automobile liability insurance to Illinois

residents.

      The sole appellant is plaintiff ASI, and it appeals the trial court’s order

dismissing, with respect to ASI only, counts I and II. These two counts are the

counts of the complaint against the City. Plaintiff M edmarc is not a party to this

appeal, because the trial court stayed counts I and II with respect to plaintiff


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No. 1-09-1693

Medmarc, and stayed counts III, IV and V with respect to both plaintiffs, pending

the outcome of this appeal.

                                    3. The Defendants

      The sole appellee is defendant City of Chicago (City). None of the

policyholder defendants filed appearances or chose to file briefs in this appeal.

There appears to be some confusion concerning who the policyholder defendants

are. In its notice of appeal, plaintiff ASI listed the policyholder defendants as David

Carrillo, Sylvia Vargas and Josue Lamontagne. These are also the same

policyholder defendants listed in the caption of both the trial court’s dismissal order

and plaintiffs’ third amended complaint, which was the subject of the dismissal

order. However, in the caption on its appellate briefs, plaintiff ASI listed the

policyholder defendants as Jan Kisielewski,1 David Carrillo, Sylvia Vargas and

Stanislaw Brzeszcz.2 By contrast, in the caption to its appellate brief, defendant


      1
          ASI named Jan Kisielewski as a defendant in its original complaint and in its

first amended complaint, but not in its subsequent complaints. On August 15, 2007,

the circuit court issued a written order which stated that “Jan Kisielewski is

nonsuited as a party defendant by Plaintiff [ASI] without costs.”
      2
          ASI moved to amend its complaint on May 2, 2007, because it claimed that

                                            4
No. 1-09-1693

City listed the individual defendants as provided in plaintiff’s notice of appeal. In

this opinion, for the purpose of determining the appropriate policyholder defendants,

we have relied on the notice of appeal, as well as the dismissal order and plaintiffs’

own complaint.

      As explained above, there are only three policyholder defendants: Carrillo

and Vargas, who owned vehicles insured by plaintiff ASI; and Lamontagne, who

owned a vehicle insured by plaintiff Medmarc. While operating their respective

vehicles, Carrillo, Vargas and Lamontagne were all involved in separate motor

vehicle collisions which resulted in damage to City property.

      Defendant City filed administrative complaints in which it alleged that the

policyholder defendants violated several sections of the Chicago Municipal Code.


two new claims had come to its attention. Those claims involved Sylvia Vargas and

Stanislaw Brzeszcz, who were then added as defendants in ASI’s first amended

complaint. On April 9, 2007, defendant City nonsuited its administrative action

against Brzeszcz. On July 5, 2007, ASI moved to default Brzeszcz, and that motion

was granted by the circuit court in a written order dated July 19, 2007. ASI

subsequently dropped Brzeszcz as a defendant from its third amended complaint

filed on March 5, 2009.

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No. 1-09-1693

In these complaints, defendant City sought money for property damage repairs,

statutory penalties, attorney fees and administrative costs. The administrative

complaints were brought before administrative hearing officers, in the City’s

Department of Administrative Hearings.

      For example, the administrative complaint against defendant Carrillo

contained three counts, and all three counts sought money pursuant to specific

provisions of the Chicago M unicipal Code. The first count was brought pursuant to

section 8-4-120 of the Chicago Municipal Code, (Chicago Municipal Code, §8-4-

120 amended July 29, 1998)), which provides that any person injuring city property

shall be fined between $200 and $500. The second count was brought pursuant to

section 1-20-020 (Chicago Municipal Code, §1-20-020 (amended July 21, 2004)),

which permitted the City to recover costs; and the third count was brought pursuant

to section 1-20-060 (Chicago Municipal Code, §1-20-060 (amended July 21,

2004)), which authorized the City to recover attorney fees and collection costs.

Although the complaint’s prefatory paragraphs alleged that defendant’s actions had

violated provisions of the Illinois Vehicle Code, the three counts sought monies only

pursuant to specific Municipal Code sections.




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No. 1-09-1693

                            4. The Circuit Court Complaint

      The third amended complaint, filed March 5, 2009, is the subject of the trial

court’s dismissal order. In counts I and II, plaintiffs sought relief against defendant

City. Plaintiffs sought injunctive relief in count I and declaratory relief in count II.

In these counts, plaintiffs allege that the City’s administrative tribunals lacked

subject matter jurisdiction over motor vehicle collisions; that the City’s

administrative complaints violated the Illinois Constitution’s guarantee of a jury trial

for tort claims; and that statutory law also did not permit recovery for automobile

collisions in administrative tribunals.

      In counts III, IV and V, plaintiffs sought relief against the policyholder

defendants. In count III, plaintiffs sought a declaration that the damages alleged by

defendant City were not covered under the policies issued by plaintiffs. In count IV,

plaintiff ASI claimed a policy defense of late notice against policyholder defendant

Carrillo; and in count V, plaintiff Medmarc also claimed late notice against

defendant Lamontagne..

                         5. Nonsuits and Default Judgements

      As noted above, there are two different types of actions involved on this

appeal, and default orders occurred in both types. First, there are the underlying


                                            7
No. 1-09-1693

administrative actions by the City against the policyholders, in which the City is the

plaintiff and the policyholders are the defendants. Second, there is this suit, filed by

the plaintiff insurance companies in the circuit court of Cook County, in which the

City is now a defendant, as are the policyholders.

      In one of the underlying administrative actions, the City nonsuited the action.

On December 17, 2007, the City nonsuited its administrative complaint against

policyholder David Carrillo. On April 5, 2007, the City had previously obtained a

default judgment against Carrillo in the amount of $12,518.08. The notice of the

default judgement informed Carrillo that he had 21 days to file a petition to vacate

with the Department of Administrative Hearings (DOAH). In its complaint, ASI

admits that it received notice of the claim from Carrillo on February 15, 2007, long

before the entry of the default judgment. The City states in its appellate brief that

Carrillo subsequently filed a motion before DOAH to set aside the judgment, and

that the City then nonsuited its adminstrative suit on December 17, 2007.3


      3
          In support of this statement in its appellate brief, the City cites its own

summary judgment motion, dated March 17, 2008. The City does not state in either

its summary judgement motion or in its appellate brief whether Carrillo’s motion to

vacate, filed with DOAH, was granted or denied.

                                              8
No. 1-09-1693

      In the other underlying administrative action against an ASI policy holder, the

City obtained a default judgment against policyholder Sylvia Vargas on April 23,

2007, in the amount of $9,979.18.

      In the circuit court action, plaintiff ASI moved for and obtained default orders

against both ASI policyholder defendants, Carrillo and Vargas. The trial court

granted plaintiff ASI a default order against Carrillo on January 7, 2008, and against

Vargas on January 7, 2008.4


      4
          In its appellate brief, defendant City claims that plaintiff ASI “sought and

obtained default judgments” against the ASI policyholders. However, the orders

that ASI sought and obtained were merely default orders, not final judgments.

ASI’s motion with respect to Carrillo stated that it “moved this Honorable Court to

Enter an Order of Default against” Carrillo. ASI’s motion with respect to Vargas

said the same thing. Nowhere in its motions did ASI use the word “judgment.”

Similarly, the trial court’s orders also never used the word “judgment.” The trial

court’s order with respect to Carrillo stated simply that “Defendant David Carrillo is

hereby defaulted”; and its order with respect to Vargas stated that “Defendant

Sylvia Vargas is hereby found to be in default.” Thus, they were default orders, not

entries of a final judgment. That these were not final judgments becomes more

                                             9
No. 1-09-1693

      The appellate record does not indicate that plaintiff Medmarc moved for a

default order against Lamontagne, the sole M edmarc policyholder named in the

complaint; and the City did not move to dismiss plaintiff Medmarc on that ground.

                        6. Revised Administrative Complaint

      Defendant City claimed that, in December 2007, it stopped using the

administrative complaint at issue in this suit and replaced it with a new complaint.

In its appellate brief, defendant City stated: “Although the City pursues

administrative hearings in these types of cases based on damage to City property in

violation of Municipal Code of Chicago, III. §§ 8-4-120, 1-20-020, 1-20-060

(2009), the old complaint also made reference to violations of the Illinois Vehicle

Code when such violations were part of the factual background leading to the

property damage. [Citation.] The new complaint has removed any reference to

violations of the Vehicle Code and clarifies that the sole basis for the hearing is the

Municipal Code violation.”


clear, when one considers that the trial court subsequently stayed ASI’s count

against policyholder Carrillo for late notice. If the trial court had previously entered

a final judgment against Carrillo, there would have been no need to stay this count

pending the outcome of this appeal.

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No. 1-09-1693

                                   7. Motion to Dismiss

          In the circuit court action, defendant City moved to dismiss counts I and II,

with respect to plaintiff ASI only. Specifically, on April 9, 2009, defendant City

moved to dismiss, pursuant to section 2-619 of the Code of Civil Procedure (735

ILCS 5/2-619 (W est 2008)), on several grounds. Defendant City claimed: (1) that,

since plaintiff ASI had already obtained default orders against the policyholder

defendants, it lacked standing to pursue the policyholders’ claims; (2) that the

default orders rendered ASI’s claims moot; (3) that plaintiff ASI’s claims were also

rendered moot because defendant City was no longer using the same administrative

complaint that it used in connection with the policyholders at issue; and (4) that

plaintiff may not pursue injunctive and declaratory relief to prevent defendant City

from seeking administrative judgments against unidentified ASI policyholders in the

future.

                                 8. Orders Appealed From

          On May 20, 2009, the trial court issued a written order stating: “City’s

motion to dismiss counts I & II against Plaintiff ASI only of Plaintiff’s Third

Amended Complaint is granted for the reasons indicated in the City’s motion.” No

record of proceedings or bystander’s report was provided in the appellate record.


                                             11
No. 1-09-1693

      On June 2, 2009, the trial court issued a written order in which it found no

reason to delay enforcement and appeal, pursuant to Supreme Court Rule 304(a).

210 Ill. 2d R. 304(a) (“If multiple parties or multiple claims for relief are involved in

an action, an appeal may be taken from a final judgment as to one or more but fewer

than all of the parties or claims only if the trial court has made an express written

finding that there is no just reason for delaying either enforcement or appeal or

both.”)

      In the order dated June 2, 2009, the trial court also ruled that: “Counts I and

II of [plaintiff] MEDM ARC’s complaint, and Counts III, IV and V of Plaintiff ASI

and MEDMARC’s complaint are hereby stayed until further order of this Court

pending appeal by [plaintiff] ASI of the Dismissal of Counts I and II of [plaintiff]

ASI’s complaint.”

                                      ANALYSIS

                                1. Standard of Review

      On appeal, plaintiff asks us to reverse the trial court’s partial dismissal order,

issued pursuant to section 2-619 of the Code of Civil Procedure. (Code). 735 ILCS

5/2-619 (West 2008). “A motion to dismiss, pursuant to section 2-619 of the Code,

admits the legal sufficiency of the plaintiffs’ complaint, but asserts an affirmative


                                           12
No. 1-09-1693

defense or other matter that avoids or defeats the plaintiffs’ claim.” DeLuna v.

Burciaga, 223 Ill. 2d 49, 59 (2006); Solaia Technology, LLC v. Specialty Publishing

Co., 221 Ill. 2d 558, 579 (2006). For a section 2-619 dismissal, our standard of

review is de novo. Solaia Technology, 221 Ill. 2d at 579; Morr-Fitz, Inc. v.

Blagojevich, 231 Ill. 2d 474, 488 (2008).

      When reviewing “a motion to dismiss under section 2-619, a court must

accept as true all well-pleaded facts in plaintiffs’ complaint and all inferences that

can reasonably be drawn in plaintiffs’ favor.” Morr-Fitz, 231 Ill. 2d at 488. “In

ruling on a motion to dismiss under section 2-619, the trial court may consider

pleadings, depositions, and affidavits.” Raintree Homes, Inc. v. Village of Long

Grove, 209 Ill. 2d 248, 262 (2004). Even if the trial court dismissed on an improper

ground, a reviewing court may affirm the dismissal, if the record supports a proper

ground for dismissal. Raintree, 209 Ill. 2d at 261 (when reviewing a section 2-619

dismissal, we can affirm “on any basis present in the record”); In re Marriage of

Gary, 384 Ill. App. 3d 979, 987 (2008) (“we may affirm on any basis supported by

the record, regardless of whether the trial court based its decision on the proper

ground”).




                                            13
No. 1-09-1693

                        2. Timeliness of Section 2-619 Motion

      “For a motion to be properly brought under section 2-619, the motion (1)

must be filed ‘within the time for pleading,’ and (2) must concern one of nine listed

grounds.” River Plaza Homeowner’s Ass’n v. Healey, 389 Ill. App. 3d 268, 275

(2009), quoting 735 ILCS 5/2-619(a) (W est 2006). In the case at bar, the third

amended complaint was filed on March 5, 2009. On March 12, 2009, the circuit

court issued a written order directing defendant City to “answer or otherwise plead

to Plaintiffs’ Third Amended Complaint on or before April 9, 2009.” Following

this order, defendant City moved to dismiss on April 9, 2009. Thus defendant

City’s section 2-619 motion was timely.

                     3. Subject Matter of Section 2-619 Motion

      The second requirement for a section 2-619 motion is that it must concern one

of the nine grounds listed in section 2-619. River Plaza, 389 Ill. App. 3d at 275. A

section 2-619 motion is permitted only on the following grounds:

                    “(1) That the court does not have jurisdiction of the

             subject matter of the action, provided the defect cannot be

             removed by a transfer of the case to a court having

             jurisdiction.


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No. 1-09-1693

                   (2) That the plaintiff does not have legal capacity

           to sue or that the defendant does not have legal capacity

           to be sued.

                   (3) That there is another action pending between

           the same parties for the same cause.

                  (4) That the cause of action is barred by a prior

           judgment.

                  (5) That the action was not commenced within the

           time limited by law.

                  (6) That the claim set forth in the plaintiff’s

           pleading has been released, satisfied of record, or

           discharged in bankruptcy.

                  (7) That the claim asserted is unenforceable under

           the provisions of the Statute of Frauds.

                  (8) That the claim asserted against defendant is

           unenforceable because of his or her minority or other

           disability.

                  (9) That the claim asserted against defendant is


                                         15
No. 1-09-1693

             barred by other affirmative matter avoiding the legal effect

             of or defeating the claim.” 735 ILCS 5/2-619(a) (West

             2008).

We have previously held that a claim of mootness is properly considered under the

last ground of section 2-619, as an affirmative matter avoiding the legal effect of or

defeating the claim. Barber v. American Airlines, Inc., 398 Ill. App. 3d 868, 879

(2010); Chicorp, Inc. v. Bower, 336 Ill. App. 3d 132, 136-37 (2002) . See also

Akinyemi v. JP Morgan Chase Bank, N.A., 391 Ill. App. 3d 334, 339 (2009)

(“regarding section 2-619 of the Code, we hold that dismissal under this section was

proper as well, since plaintiff’s claim is moot”); Sadler v. Creekmur, 354 Ill. App.

3d 1029, 1039-40 (2004). Thus, defendant City’s motion satisfied the second

requirement of a section 2-619 motion, that the motion concern one or more of the

listed grounds. Having determined that, procedurally, this motion was properly

brought under section 2-619, we must next determine whether, substantively, it was

properly granted.

                      4. Substance of Section 2-619 Dismissal

      As noted in the Background section above, defendant City moved to dismiss

on several grounds. It claimed: (1) that, since plaintiff ASI had already obtained


                                          16
No. 1-09-1693

default orders against the policyholder defendants, it lacked standing to pursue the

policyholders’ claims; (2) that the default orders rendered ASI’s claims moot; (3)

that plaintiff ASI’s claims were also rendered moot because defendant City was no

longer using the same administrative complaint that it used in connection with the

policyholders at issue; and (4) that plaintiff may not pursue injunctive and

declaratory relief to prevent defendant City from seeking administrative judgments

against unidentified ASI policyholders in the future. The trial court stated only that

the City’s motion was “granted for the reasons indicated in the City’s motion.”

Since we may affirm on any ground present in the record, we may reverse only if

none of these grounds are supported by the record. Raintree, 209 Ill. 2d at 261

(when reviewing a section 2-619 dismissal, we can affirm “on any basis present in

the record”); In re Marriage of Gary, 384 Ill. App. 3d at 987 (“we may affirm on

any basis supported by the record, regardless of whether the trial court based its

decision on the proper ground”).

                                     a. Standing

      First, defendant City claimed in its motion to dismiss that “ASI does not have

standing to pursue its Insureds’ claims because ASI’s Insureds have been defaulted

by” the trial court. As previously discussed in footnote 4 above, although plaintiff


                                          17
No. 1-09-1693

ASI obtained default orders against its policyholders, no final declaratory judgment

has been entered by the trial court in this case. Thus, plaintiff still has standing to

pursue its policyholder’s claims.

       A default order and a default judgment are two different things. If a

defendant is served with process and fails to enter an appearance, file pleadings or

make any other response to plaintiff’s complaint, the plaintiff may move for entry of

a default judgment pursuant to section 2-1301 of the Code (735 ILCS 5/2-1301

(West 2008)). Saichek v. Lupa, 204 Ill. 2d 127, 129 (2003). If the trial court grants

the motion, then it will first enter an order of default in favor of plaintiff and against

defendant. Saichek, 204 Ill. 2d at 129. The Code then requires that the defendant

be notified of the default order. 735 ILCS 5/2-1302(a) (West 2008) (“Upon the

entry of an order of default, the attorney for the moving party shall immediately give

notice thereof *** against whom the order was entered”); Saichek, 204 Ill. 2d at

129. The trial court may set aside any default order, in its discretion, before entry of

the final judgment. 735 ILCS 5/2-1301(e) (West 2008).

       After a default order is entered, the trial court may hold a “ ‘prove-up’

hearing.” Saichek, 204 Ill. 2d at 129-30. Although a default may be deemed an

admission of the material facts stated in the complaint, a trial court also has the


                                            18
No. 1-09-1693

discretion to require a plaintiff to present proof of the factual allegations in its

complaint. Universal Casualty Co. v. Lopez, 376 Ill. App. 3d 459, 465,464 (2007)

(although “a default is regarded as an admission of the material facts stated in the

complaint,” a trial court also has “discretion to require proof of the allegations in the

complaint”); 735 ILCS 5/2-1301(d) (West 2008) (“Judgment by default may be

entered for want of an appearance or for failure to plead, but the court may in either

case, require proof of the allegations of the pleadings upon which relief is sought”).

If the plaintiff fails to meet its burden of proof at a prove-up, the trial court may

refuse to enter a default judgement. Universal Casualty, 376 Ill. App. 3d at 464

(“Where an insurer is not prepared to meet its burden of proof ***, a court may

properly refuse to enter a default judgment in the insurer’s favor”). In addition, a

default is not deemed an admission of the legal “conclusions in the complaint.”

Universal Casualty, 376 Ill. App. 3d at 466 (“A default does not admit the

conclusions in the complaint” (emphasis in original)). Thus, even after the entry of

a default order, a plaintiff might not be able to secure a favorable final judgment, if

(1) the trial court requires proof of the factual allegations and the plaintiff fails to

satisfy its burden, or (2) the trial court finds that the legal conclusions in the

complaint are not valid, or (3) the trial court exercises its discretion to set aside a


                                            19
No. 1-09-1693

default order, as it may do anytime before entry of the final judgment. 735 ILCS

5/2-1301(e) (West 2008).

      Since a default order is no guarantee of ultimate success, a plaintiff must be

permitted to pursue alternate theories of recovery, until a final judgment is secured.

Cf. Saichek, 204 Ill. 2d at 131-32 (after plaintiff received a final judgment, she

could not pursue an alternate theory of recovery for the same injury). Since the

issues between the insurance company and its policyholders are still unresolved, the

insurance company has no less standing after the default orders than it did before.

      In addition, it is unpersuasive for the City to argue that the insurance carrier

lacks standing, when a default judgment would not necessarily terminate the City’s

rights against the insurance company. Insurance Co. of North America (ICNA) v.

Cape Industries, Ltd., 138 Ill. App. 3d 720, 725 (1985) (“the default against the

insured and the termination of his rights did not terminate the rights of the injured

party” against the insurance company). Under Illinois public policy, an insurance

policy is not necessarily a private matter between an insurer and its insured: the

rights of an injured party, such as the City, against a liability insurer, such as ASI,

vest at the moment of the accident giving rise to the underlying claim against the

insured, such as Carrillo and Vargas. State Farm Fire & Casualty Co. v. Perez, 387


                                           20
No. 1-09-1693

Ill. App. 3d 549, 552 (2008); Record-A-Hit, Inc. v. National Fire Insurance Co. of

Hartford, 377 Ill. App. 3d 642, 645 (2007); Reagor v. Travelers Insurance Co., 92

Ill. App. 3d 99, 102-03 (1980). Illinois courts have held that a liability insurance

carrier, such as ASI, cannot cut off the rights of an injured third party, such as the

City, merely by obtaining a default judgment against the insured. ICNA, 138 Ill.

App. 3d at 725 (“a liability insurance carrier cannot cut off the rights of a third

[party] who has filed suit against the insured merely by obtaining a judgment against

the insured declaring that a policy defense is operative”). Conversely, it must then

be the case that the insurance company also has standing to litigate issues with an

injured third party who has sued its insured. Cf. ICNA, 138 Ill. App. 3d at 725 (an

injured “party having brought suit against an alleged tortfeasor had standing to seek

a declaration as to the validity of the alleged tortfeasor’s liability insurance policy”).

      The City is well aware of its ability to pursue an insurance company, since on

July 29, 2008, the City filed a citation to discover assets against plaintiff Medmarc

as a result of a judgment that the City obtained against Lamontagne in its

administrative tribunal. Although the City nonsuited its administrative complaint

against one of the ASI policyholders (Carrillo), it still has an outstanding default

judgement against the other ASI policyholder (Vargas), which it may similarly try to


                                           21
No. 1-09-1693

pursue against ASI.

       For the foregoing reasons, we find the that the default orders did not strip the

insurance company of its standing to pursue its claims against defendant City.

                          b. Mootness Due to Default Orders

      Second, defendant City claimed in its motion to dismiss that the default

orders rendered ASI’s claims moot.

      As a general rule, Illinois appellate courts will not review moot cases. In re

Barbara H., 183 Ill. 2d 482, 491 (1998). A case on appeal becomes moot, when

“ ‘the issues involved in the trial court no longer exist,’ ” and it is “impossible for

the appellate court to grant the complaining party effectual relief.” In re A Minor,

127 Ill. 2d 247, 255 (1989), quoting and citing LaSalle National Bank v. City of

Chicago, 3 Ill. 2d 375, 378-79, 380 (1954); In re Barbara H., 183 Ill. 2d 482, 490-

91 (1998) (consideration of the issues will not affect the result and “a decision on

the merits cannot result in appropriate relief to the prevailing party”). The goal of

the rule is for courts to avoid hearing cases where the parties no longer have “ ‘ “a

personal stake in the outcome.” ’ ” In re A Minor, 127 Ill. 2d at 255, quoting People

ex rel. Black v. Dukes, 96 Ill. 2d 273, 276-77 (1983), quoting Baker v. Carr, 369

U.S. 186, 204, 7 L. Ed. 2d 663, 678, 82 S. Ct. 691, 703 (1962). Without a personal


                                           22
No. 1-09-1693

stake, parties lack the incentive to “ ‘ “sharpen[]” ’ ” their arguments or to illustrate

the issues with the “ ‘ “concrete” ’ ” facts of their problems; and reviewing courts

depend on the parties’ sharp and concrete presentation for the fullest

“ ‘ “illumination” ’ ” of the issues. In re A Minor, 127 Ill. 2d at 255, quoting Black,

96 Ill. 2d at 276-77, quoting Baker, 369 U.S. at 204, 7 L. Ed. 2d at 678, 82 S. Ct. at

703. In short, “[m]ootness occurs once the plaintiff has secured what he basically

sought.” Hanna v. City of Chicago, 382 Ill. App. 3d 672, 677 (2008).

       For the reasons discussed above in the section on standing, we find that the

issues between ASI and the City of Chicago are not moot.

       In addition, plaintiff ASI has claimed that the following two exceptions to the

mootness doctrine apply: (1) the “ ‘ “capable of repetition yet evading review” ’ ”

exception; and (2) the public interest exception. In re A Minor, 127 Ill. 2d at 257-

58, quoting Madison Park Bank v. Zagel, 91 Ill. 2d 231, 236 (1982), quoting Sansa

v. Iowa, 419 U.S. 393, 399-400, 42 L. Ed. 2d 532, 540, 95 S.Ct. 553, 557 (1975).

       To receive the benefit of the “ ‘capable of repetition yet evading review’ ”

exception, the complainant must “demonstrate that: (1) the challenged action is in its

duration too short to be fully litigated prior to its cessation and (2) there is a

reasonable expectation that the same complaining party would be subjected to the


                                            23
No. 1-09-1693

same action again.” In re Barbara H., 183 Ill. 2d at 491, quoting and citing In re A

Minor, 127 Ill. 2d at 258. Since we find below that the public interest exception

applies, we need not consider the “capable of repetition yet evading review”

exception.

      “ ‘In order to fall into the public interest exception (1) the question must be of

a public nature; (2) an authoritative determination of the question must be desirable

for the purpose of guiding public officers; and (3) the question must be likely to

recur.’ ” Filliung v. Adams, 387 Ill. App. 3d 40, 56 (2008), quoting Brown v.

Duncan, 361 Ill. App. 3d 125, 134 (2005). “A clear showing of each factor is

necessary to bring a case within this exception, and the exception is invoked only on

rare occasions.” Hanna, 382 Ill. App. 3d at 683.

      This is one of the rare occasions. First, the question in this case is whether a

municipal corporation as the City can pursue damages for motor vehicle accidents in

an administrative proceeding, and that is a public question. Second, a decision by

the court will guide public officers, namely the administrative judges and other city

employees who are processing these complaints. Third, the question is likely to

recur. The question is likely to recur, despite the fact that the City has revised its

administrative complaint, as we discuss in the next section. Thus, we find both that


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the default orders did not render the claims between ASI and the City moot, and that

even if were to find the issues moot, we would then find that the public interest

exception applies.

                 c. M ootness Due to New Adminsitrative Complaint

        Third, defendant City claimed in its motion to dismiss that plaintiff ASI’s

claims were also rendered moot by the fact that defendant City was no longer using

the same administrative complaint that it had filed against the policyholders at issue

here.

        The change was merely cosmetic. Both the old and new complaints state that

the City seeks judgments “for costs incurred by Petitioner reasonably related to

Respondent’s violation of State law and the Municipal Code of Chicago.”

(Emphasis added.) The old complaint in prefatory paragraphs also noted that the

respondent had violated specific sections of the state’s motor vehicle code. The

new complaint eliminated the prefatory paragraphs. However, both complaints seek

administrative resolutions for fees, costs and damages caused by motor vehicles to

City property. Thus, they are essentially the same.

        Thus, we find that ASI’s claims against the City were not rendered moot by

either the default orders or by the City’s changes to the administrative complaint.


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                                  d. Injunctive Relief

       Fourth, the City claimed in its motion to dismiss that, without the existence

of a live case or controversy, plaintiff ASI could not pursue injunctive and

declaratory relief simply “to prevent defendant City from seeking administrative

judgments against unidentified ASI insureds in the future.” Since we have already

held in the sections above that there is a live case and controversy, this claim must

also fall.

       Thus, we find that none of the grounds listed in defendant’s motion to dismiss

had merit; and the trial court’s order, which simply adopted these grounds, must be

reversed.

       The underlying statutory and constitutional issues are not before us on this

interlocutory appeal. Obviously, the City did not challenge its own statutory or

constitutional authority in its own motion to dismiss. Since the trial court simply

adopted the grounds stated in the City’s motion, the statutory and constitutional

issues were not part of the dismissal order, which is the subject of this interlocutory

appeal. The only issues in the dismissal order were mootness and standing, which

we have already decided.

       The Illinois Municipal Code states that: “Any municipality may provide by


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ordinance for a system of administrative adjudication of municipal code violations to

the extent permitted by the Illinois Constitution.” 65 ILCS 5/1-2.1-2 (West 2008).

This same section specifically excludes motor vehicle offenses. The very next

sentence states: “A ‘system of administrative adjudication’ means the adjudication

of any violation of a municipal ordinance, except for *** any offense under the

Illinois Vehicle Code or a similar offense that is a traffic regulation governing the

movement of vehicles.” 65 ILCS 5/1-2.1-2 (West 2008). However, this issue was

not the basis of the City’s dismissal motion or the resulting dismissal order, and thus

is not an issue on this interlocutory appeal. In remanding for further proceedings,

we follow the precedent set by this division in State Farm Mutual Automobile

Insurance Co. v. City of Chicago, 398 Ill. App. 3d 832, 836 (2010). In State Farm,

after finding that the insurance company’s action against the City of Chicago did

allege an actual controversy, this division reversed the trial court’s dismissal order

and remanded to the trial court for further proceedings consistent with its opinion.

State Farm, 398 Ill. App. 3d at 836.

                                   CONCLUSION

      For the foregoing reasons, we reverse the trial court’s partial dismissal order

which dismissed plaintiff ASI’s two counts against defendant City, and we remand


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for further proceedings consistent with this opinion.

      Reversed and remanded.

      CAHILL and McBRIDE, JJ., concur.




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