Gassman v. Clerk of the Circuit Court of Cook Cnty.

• Decision Date: 17 January 2017
• Docket Number: No. 1-15-1738,1-15-1738
• Citation: 2017 IL App (1st) 151738,71 N.E.3d 783
• Parties: David GASSMAN and A.N. Anymous, Plaintiffs-Appellants, v. The CLERK OF THE CIRCUIT COURT OF COOK COUNTY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 151738

71 N.E.3d 783

David GASSMAN and A.N. Anymous, Plaintiffs-Appellants,

v.The CLERK OF THE CIRCUIT COURT OF COOK COUNTY, Defendant-Appellee.

No. 1-15-1738

Appellate Court of Illinois, First District, SECOND DIVISION.

January 17, 2017

Jonathan Novoselsky, P.C., of Chicago (Jonathan Novoselsky, of counsel), for appellants.

Anita M. Alvarez, State's Attorney, of Chicago (Donald J. Pechous, Sisavanh Baker, and Marie D. Spicuzza, Assistant State's Attorneys, of counsel), for appellee.

OPINION

JUSTICE MASON delivered the judgment of the court, with opinion.

¶ 1 Plaintiffs David Gassman and A.N. Anymous¹ 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, 230 Ill.Dec. 209, 693 N.E.2d 338 (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 did it address the Clerk's section 2-619 arguments.

¶ 10 ANALYSIS

¶ 11 Gassman argues that the trial court erred in dismissing his suit because (i) section 27.2a(g) of the Act does not authorize fees for petitions to vacate nonfinal orders, and (ii) the court did not need to infer a private right of action to file suit to enforce the provisions of the Act. The Clerk disputes both points and additionally argues that that Gassman's suit is barred by statutory tort immunity, common law tort immunity, and res judicata .

¶ 12 The standards applicable to the Clerk's motion attacking the sufficiency of Gassman's pleading are well-settled. A section 2-615 motion to dismiss attacks the legal sufficiency of the complaint and presents the question of whether the complaint states a cause of action upon which relief can be granted. 735 ILCS 5/2-615 (West 2014) ; Weiss v. Waterhouse Securities, Inc. , 335 Ill.App.3d 875, 882, 269 Ill.Dec. 915, 781 N.E.2d 1105 (2002). When ruling on a section 2-615 motion, the pleadings are construed in the light most favorable to the nonmoving party, and all well-pled facts and reasonable inferences drawn from the complaint are taken as true. Weiss , 335 Ill.App.3d at 882, 269 Ill.Dec. 915, 781 N.E.2d 1105.

¶ 13 The trial court found that Gassman failed to state a claim for mandamus . A writ of mandamus is a judicial order used to compel a public official to perform a nondiscretionary, ministerial duty. People ex rel. Senko v. Meersman , 2012 IL 114163, ¶ 9, 366 Ill.Dec. 756, 980 N.E.2d 1115 ; see Dennis E. v. O'Malley , 256 Ill.App.3d 334, 346, 194 Ill.Dec. 865, 628 N.E.2d 362 (1993) (mandamus can be used to compel clerk of the court to comply with statutory duties). Mandamus is appropriate if plaintiff demonstrates that (1) he or she has a clear and affirmative right to relief, (2) the public official has a clear duty to act, and (3) the public official has clear authority to comply with the writ. Senko , 2012 IL 114163, ¶ 9, 366 Ill.Dec. 756, 980 N.E.2d 1115 ; Lewis E. v. Spagnolo , 186 Ill.2d 198, 229, 238 Ill.Dec. 1, 710 N.E.2d 798 (1999).

¶ 14 We first consider the correct interpretation of section 27.2a(g) of the Act: specifically, whether its provisions apply to a "final judgment or [final] order of court," as Gassman urges, or a "final judgment or [any] order of court," as the Clerk urges. For purposes of this appeal, the Clerk does not contest Gassman's assertion that a dismissal for want of prosecution is not a final order of court.

¶ 15 Proper construction of a statute is a question of law that we review de novo . Andrews v. Kowa Printing Corp. , 217 Ill.2d 101, 106, 298 Ill.Dec. 1, 838 N.E.2d 894 (2005). The fundamental rule of statutory interpretation is to ascertain and effectuate the intent of the legislature. Comprehensive Community Solutions, Inc. v. Rockford School District No. 205 , 216 Ill.2d 455, 473, 297 Ill.Dec. 221, 837 N.E.2d 1 (2005). The best indication of that intent is the language of the statute itself, which must be given its plain and ordinary meaning. Stroger v. Regional Transportation Authority , 201 Ill.2d 508, 524, 268 Ill.Dec. 417, 778 N.E.2d 683 (2002). Additionally, we should generally avoid interpretations that would render any word or phrase superfluous. Andrews , 217 Ill.2d at 109, 298 Ill.Dec. 1, 838 N.E.2d 894.

¶ 16 Here, the Clerk's interpretation renders the phrase "final judgment" superfluous. A judgment is an order of court. Thus, if section 27.2a(g) authorizes a fee for a petition to modify or vacate any order of court regardless of its finality, then the earlier mention of final judgments is redundant—which the legislature presumably did not intend. Thus, the plain language of the statute supports Gassman's interpretation of the statute.

¶ 17 This interpretation is reinforced by the Act's provision specifying one range of fees for motions to vacate filed within 30 days and a higher range of fees for motions filed beyond 30 days. The Act's specification of different fees depending on whether the time to appeal has expired, i.e. , before or after 30 days, is a strong indication that its provisions were intended to apply only to final orders. If the fee is payable for motions to vacate non-final orders, as the Clerk contends, the differing fees for motions filed before or after the 30-day period makes no sense.

¶ 18 Although the statute is clear and unambiguous and we therefore have no need to resort to anything beyond its language, we note that the interpretation we adopt is consistent with its history. Prior to 1990, the operative statute did not contain any reference to finality. I...