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Gassman v. The Clerk of Circuit Court of Cook County

Court of Appeals of Illinois, First District, Second Division

January 17, 2017

DAVID GASSMAN and A.N. ANYMOUS, Plaintiffs-Appellants,
v.
THE CLERK OF THE CIRCUIT COURT OF COOK COUNTY, Defendant-Appellee.

          Appeal from the Circuit Court of Cook County, Illinois. No. 14 CH 12269 Honorable Rodolfo Garcia, Judge Presiding.

          JUSTICE MASON delivered the judgment of the court, with opinion. Justices Neville and Pierce concurred in the judgment and opinion.

          OPINION

MASON JUSTICE

         ¶ 1 Plaintiffs David Gassman and A.N. Anymous[1] bring this suit for mandamus and other relief against the Clerk of the Circuit Court of Cook County (Clerk), challenging the statutory validity of certain fees levied by the Clerk's office.

         ¶ 2 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). Pursuant to this section, in separate underlying cases, plaintiffs were each charged a $90 fee for filing a petition to vacate a dismissal for want of prosecution. Plaintiffs paid under protest and then filed the present lawsuit, seeking mandamus relief and arguing that the fees were not authorized by the statute because a dismissal for want of prosecution is not a final order of court.

         ¶ 3 The Clerk sought dismissal under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2014)), arguing that the word "final" in section 27.2a(g)(2) applies only to judgments, not to orders of court. The trial court dismissed the action. Plaintiffs appeal, arguing that the Clerk's interpretation of the statute is incorrect. We agree with plaintiffs and reverse.

         ¶ 4 BACKGROUND

         ¶ 5 Section 27.2a of the Act prescribes court fees for counties with populations of 3, 000, 000 or more, stating that all such fees "shall be as provided in this Section." 705 ILCS 105/27.2a (West 2012). The Act further provides that "[i]n those instances where a minimum and maximum fee is stated, the clerk of the circuit court must charge the minimum fee listed and may charge up to the maximum fee if the county board has by resolution increased the fee." Id. Subsection (g), regarding petitions to vacate or modify court orders, states:

"(1) Petition to vacate or modify any final judgment or order of court, *** if filed before 30 days after the entry of the judgment or order, a minimum of $50 and a maximum of $60.
(2) Petition to vacate or modify any final judgment or order of court, *** if filed later than 30 days after the entry of the judgment or order, a minimum of $75 and a maximum of $90." 705 ILCS 105/27.2a(g) (West 2012).

         ¶ 6 According to plaintiffs' amended complaint, Gassman was a plaintiff in a civil case that was dismissed for want of prosecution. Gassman filed a petition to vacate the dismissal order. On November 22, 2013, the court informed Gassman that the court could not vacate the dismissal orders unless he paid a fee of $90. Gassman paid under protest, arguing that the fee was improper because the dismissal at issue was neither a final judgment nor a final order under Illinois law. See S.C. Vaughan Oil Co. v. Caldwell, Troutt & Alexander, 181 Ill.2d 489, 506 (1998) (a dismissal for want of prosecution 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))).

         ¶ 7 Gassman brings this action "individually and on behalf of all others similarly situated, " seeking relief in two counts. In count I, Gassman seeks a writ of mandamus compelling the Clerk to cease and desist her efforts to collect fees that are 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, Gassman seeks an accounting of all fees that the Clerk has collected for petitions to vacate dismissals for want of prosecution.

         ¶ 8 The Clerk moved to dismiss under sections 2-615 and 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 2012)). Under section 2-615, the Clerk argued that Gassman failed to state a cause of action for mandamus for two reasons. First, imposition of the $90 fee was correct, since section 27.2a(g) applies to any order of court, not only final orders of court, and second, section 27.2a(g) does not create a private right of action. Under section 2-619, the Clerk argued that imposition of fees is a discretionary act that is protected by both statutory and common law immunity. Finally, also under section 2-619, the Clerk argued that Gassman's suit was barred by res judicata, since Gassman's attorney, David Novoselsky, previously brought two unsuccessful lawsuits challenging the same fee: Schacht v. Brown, No. 2010 L 008024 (Cir. Ct. Cook Co.) and Shaheen v. Brown, No. 09 L 933 (Cir. Ct. Cook Co.). Although those cases had different plaintiffs, the Clerk asserted that Gassman was in privity with the Schacht v. Brown and Shaheen v. Brown plaintiffs based on the identity of the parties' counsel.

         ¶ 9 On May 7, 2015, the trial court granted the Clerk's motion to dismiss pursuant to section 2-615. The dismissal order did not explain the court's reasoning, nor ...


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