Court of Appeals of Illinois, First District, Second Division
DAVID GASSMAN and A.N. ANYMOUS, Plaintiffs-Appellants,
THE CLERK OF THE CIRCUIT COURT OF COOK COUNTY, Defendant-Appellee.
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.
1 Plaintiffs David Gassman and A.N. Anymous 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
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.
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
(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'
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 ...