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12/10/97 DON NORTON v. CITY CHICAGO

December 10, 1997

DON NORTON, GERALD MARLATT, WILLIAM KNACK, RUTH KNACK, JANE REAMES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,
v.
THE CITY OF CHICAGO, DATACOM SYSTEM CORPORATION AND COOK COUNTY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 88 CH 9011. Honorable John K. Madden, Judge Presiding.

Released for Publication January 22, 1998.

The Honorable Justice Cahill delivered the opinion of the court. Leavitt, P.j., and Gordon, J., concur.

The opinion of the court was delivered by: Cahill

The Honorable Justice CAHILL delivered the opinion of the court:

We review once again a long running dispute between plaintiffs and the lone remaining defendant, Cook County, about the legality of a $3 charge added to delinquent parking tickets in the City of Chicago between 1985 and 1986.

In an earlier appeal, we reviewed the trial court's grant of defendant's motion to dismiss against all defendants: the city, the county, and Datacom System Corporation. See Norton v. City of Chicago, 267 Ill. App. 3d 507, 642 N.E.2d 839, 204 Ill. Dec. 938 (1994) (Norton I). We first upheld the dismissal of the city and Datacom. We then reversed the trial court's ruling that plaintiffs' suit was an impermissible collateral attack, finding that the record was "unclear whether final judgments were ever entered by the traffic court." Norton, 267 Ill. App. 3d at 510. We held that the county's motion to dismiss under section 2-615 (735 ILCS 5/2-615 (West 1996)) of the Code of Civil Procedure rather than section 2-619 (735 ILCS 5/2-619 (West 1996)) should not have been granted. The trial court could not conclude, based on pleadings alone, that final judgments had been entered in traffic court. We held that the trial court erred in finding that the traffic court entered final judgments where the allegations of the county's motion to dismiss failed to establish final judgments. Norton, 267 Ill. App. 3d at 511.

On remand, the parties filed cross-motions for summary judgment. The trial court granted summary judgment for the county.

The parties raise the following issues on appeal: (1) whether the suit is barred by the collateral attack doctrine; (2) whether the suit is barred by the voluntary payment doctrine; (3) whether the county retained money wrongfully obtained from plaintiffs; and (4) whether plaintiffs are entitled to prejudgment interest. We reverse and remand.

The affidavits and depositions attached to the motions for summary judgment show that, through 1986, if a city parking ticket defendant did not pay the fine or appear in court after two notices, the ticket was listed by the clerk of the court as delinquent, but no default judgment was entered. If the ticket was later paid, the county received $3 of the money collected from each delinquent ticket. Before May, 1985, the $3 was taken from each fine paid to the city. In 1985, the city hired Datacom System Corporation to send demand notices and collect delinquent fines. A $3 surcharge was added to the total fine due. The surcharge was described on the notice as "court costs." The clerk of the circuit court passed on the money collected from this surcharge to the county.

The notices sent by Datacom read:

"You can obtain additional information about this notice ONLY by writing to the address listed above or by calling (312) 580-3400.

Our records indicate that the parking tickets listed below have not been paid. IF YOU DO NOT PAY THE TOTAL AMOUNT SHOWN BELOW IMMEDIATELY, THE CITY OF CHICAGO WILL TAKE FURTHER LEGAL ACTION AGAINST YOU. This may include preparing a verified petition in the Circuit Court of Cook County requesting that a DEFAULT JUDGMENT in the amount of $35 plus court costs be entered against you for each unpaid ticket.

You can avoid this action by mailing a check or money order in the total amount shown below. *** No information will be given or payment accepted at Traffic Court." (Emphasis added.)

The demand notices were revised during a law suit (Horn v. City of Chicago, 85 C 6838 (N.D. Ill. 1988)) in which the plaintiffs alleged that the demand notices violated their right to due process by failing to give sufficient notice that a hearing was available to contest their liability. See Horn v. City of Chicago, 860 F.2d 700 (7th Cir. 1988). The $3 surcharge was relabeled a "statutory mailing fee." The revised demand notices read:

"You can obtain additional information about this notice ONLY by writing to the address listed, by calling (312) 580-3400, or by visiting the parking ...


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