A state appeals court has again ruled Cook County Circuit Court Dorothy Brown is requesting unauthorized filing fees from parties involved in lawsuits.
In January 2017, the Illinois First District Appellate Court found Brown’s office misinterpreted a state law allowing it to collect fees from people filing certain motions in court. The plaintiff in that case, David Gassman, through attorney David Novoselsky, of Waukegan, sued the circuit clerk’s office in 2014, asserting he had been improperly charged a $90 fee to file a motion to ask the court to undo the dismissal of a lawsuit he had filed.
When the panel remanded that case, Brown offered refunds to Gassman and another plaintiff, now known to be A&G Foods Inc., and told Cook County Circuit Judge Rodolfo Garcia the office changed its fee collection policies to comply with the appellate opinion.
Cook County Circuit Clerk Dorothy Brown
Garcia dismissed Gassman’s complaint as moot on May 23, 2017.
The plaintiffs appealed that dismissal, saying the dispute is active because Brown’s office is still collecting improper fees and the refund she offered wasn’t negotiable, meaning it failed to provide the full relief sought at trial.
A three-justice panel of the Illinois First District Appellate Court issued an opinion on that appeal March 12. Justice Mary Anne Mason wrote the opinion; Justices Aurelia Pucinski and Michael Hyman concurred.
In its defense, Brown’s office submitted a Feb. 21, 2017, memo from its general counsel, Kelly Smeltzer, detailing changes in the fee collection policy. But A&G said it was charged a $90 fee for filing a motion to vacate a dismissal on March 7, and said another plaintiff was assessed the same fee on the same date.
Like Gassman’s original complaint, the two suits that generated filing fees on March 7 had been dismissed for want of prosecution, which are not considered to be final judgments under the law until at least a year has passed from the time of dismissal with no attempt by the plaintiff to resuscitate the case.
“Although the Smeltzer memo may have been intended to comply with our mandate,” Mason wrote, “its instruction to collect fees for all petitions to vacate or modify ‘dismissal(s)’ still encompasses some nonfinal orders.”
Gassman said the refund check was unacceptable because it was made out to the wrong law firm — Novoselsky Law Office instead of Jonathan Novoselsky P.C. — and couldn’t be negotiated. Mason explained the 2014 complaint was filed through David Novoselsky, of Novoselsky Law Offices P.C., but he withdrew from the case and was replaced by Jonathan Novoselsky P.C., with different contact information.
According to the panel, Brown “was apparently aware of Jonathan’s status as plaintiffs’ counsel, since she correctly sent notice of her motion to dismiss to Jonathan at his firm. Moreover, if there was any uncertainty as to whom the tender should be made, it was incumbent upon the Clerk to clarify that fact before making the tender.”
Brown said David Novoselsky could’ve signed the check to Jonathan Novoselsky, but the panel agreed with the plaintiffs’ position that doing so would have violated the Illinois Rules of Professional Conduct.
“Even more fundamentally, we fail to see why, if a defendant proffers a tender to the wrong entity, that error would be cured by the possibility that the entity might later deliver the tender to the correct entity," Mason wrote.
Since the panel determined Gassman’s complaint should remain active in circuit court, it didn’t analyze whether it needed to apply a public interest exception to the mootness doctrine.