Tejada v. Barreiro

2022 IL App (2d) 210696-U

• Court: Appellate Court of Illinois
• Decided: August 22, 2022
• Docket: 2-21-0696
• Status: Unpublished

Opinion

2022 IL App (2d) 210696-U No. 2-21-0696 Order filed August 22, 2022

NOTICE: This order was filed under Supreme Court Rule 23(b) and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

RAUL TEJADA, individually, and on behalf ) Appeal from the Circuit Court of all others similarly situated, and ) of Kane County. ALEJANDRO VALENCIA, on behalf of ) himself and all others similarly situated, ) ) Plaintiffs-Appellants, ) ) Nos. 17-L-189, 17-L-388 v. ) ) THERESA E. BARREIRO, as successor to ) Thomas M. Hartwell, as Circuit Court Clerk, ) Kane County, Illinois; MICHAEL J. ) KILBOURNE, as successor to David J. ) Rickert, as Treasurer of Kane County, Illinois; ) and KANE COUNTY, ILLINOIS, a body ) politic, ) Honorable ) Kevin T. Busch, Defendants-Appellees. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SCHOSTOK delivered the judgment of the court. Justices Jorgensen and Brennan concurred in the judgment.

ORDER

¶1 Held: The trial court properly dismissed the plaintiffs’ complaints; the trial court did not abuse its discretion in dismissing the plaintiffs’ complaints with prejudice.

¶2 The plaintiffs, Raul Tejada and Alejandro Valencia, filed complaints against the Kane

County Circuit Court Clerk (Clerk), the Kane County Treasurer, and Kane County seeking 2022 IL App (2d) 210696-U

damages for the Clerk’s improper assessment of certain fees. The circuit court of Kane County

dismissed the plaintiffs’ complaint with prejudice. For the reasons that follow, we affirm.

¶3 I. BACKGROUND

¶4 In 2014, the circuit court entered an order of default and a judgment of foreclosure against

Tejada in Everbank v. Raul Tejada, et al., No. 13-CH-2185 (Cir. Ct. Kane County). Tejada

subsequently filed a motion to vacate the default judgment of foreclosure. The Clerk charged

Tejada a $75 fee.

¶5 In 2017, the circuit court dismissed Valencia’s action in No. 16-L-360 (Cir. Ct. Kane

County) for want of prosecution. Thereafter, Valencia filed a motion to vacate that dismissal. The

Clerk charged Valencia a $50 fee to have the case reinstated, which Valencia’s attorney paid.

¶6 A section of the Clerks of Courts Act (Act), applicable to Kane County when the plaintiffs

filed their motions to vacate, authorizes the circuit clerk to charge between a minimum of $50 and

a maximum of $90 when a party files a “[p]etition to vacate or modify any final judgment or order

of court” in most civil cases. 705 ILCS 105/27.1(g)(1),(2) (West 2014). The key word there is

final—that is, that the fee applies only to final judgments. Neither the judgment of foreclosure

entered in Tejada’s case nor the dismissal for want of prosecution entered in Valencia’s case were

final orders. See EMC Mortgage Corp v. Kemp, 2012 IL 113419, ¶¶ 10-11 (a judgment of

foreclosure is not a final judgment because it does not dispose of all issues and does not terminate

the litigation); Alderson v. Weinstein, 2018 IL App (2d) 170498, ¶ 3 (a dismissal for want of

prosecution does not become final until the one-year period to refile a claim has expired).

Accordingly, the Kane County Circuit Clerk was not statutorily authorized to charge either Tejada

or Valencia a fee to reinstate their cases.

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¶7 On April 5, 2017, Tejada filed a class action complaint. On July 25, 2017, Valencia filed

a class action complaint. Both complaints alleged that the Clerk had improperly charged and

collected fees for filing petitions to reconsider, vacate, or modify interlocutory orders. Each of the

complaints alleged a violation of the Act, alleged unjust enrichment, and sought a declaratory

judgment and an injunction. The plaintiffs sought damages, including pre and post-judgment

interest, costs and attorney fees. Tejada’s and Valencia’s actions were ultimately consolidated.

¶8 At the time Tejada and Valencia filed their complaints, many other courts were considering

the same issue of whether county circuit clerks had been improperly charging fees for parties to

vacate or modify non-final orders. As a result, the trial court stayed the proceedings on two

different occasions as it waited for guidance from the Illinois appellate courts.

¶9 On March 7, 2018, the Illinois Appellate Court, First District, issued the first decision that

the circuit court had stayed the proceedings for, Midwest Medical Records Ass’n, Inc. v. Brown,

2018 IL App (1st) 163230. In that case, the court held that the fees at issue were not authorized

by statute and that litigants could seek equitable relief of a declaratory judgment and the return of

their fees in the form of restitution. Midwest, 2018 IL App (1st) 163230, ¶ 52. The court

additionally held that the plaintiffs could not seek damages that included costs and attorney fees

because the Act did not afford the plaintiff a private cause of action to seek redress because the

plaintiff already had an adequate remedy to recover. Id.

¶ 10 After the Midwest decision, the trial court lifted the stay and granted the defendants’ motion

to dismiss those parts of the plaintiffs’ complaint that alleged a private cause of action under the

Act. The trial court denied the defendants’ motion to dismiss the plaintiff’s claims for unjust

enrichment.

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¶ 11 On May 20, 2021, the trial court stayed the proceedings pending the supreme court’s

decision in Walker v. Chasteen but allowed the plaintiff to file an amended complaint and an

amended motion to certify a class. On June 17, 2021, the supreme court held in Walker that the

voluntary payment doctrine does not bar an action for the return of circuit court filing fees. Walker

v. Chasteen, 2021 IL 126086, ¶¶ 23-28.

¶ 12 On June 23, 2021, the plaintiffs filed amended complaints. The plaintiffs continued to seek

damages. On July 22, 2021, the defendants filed a motion to dismiss the plaintiffs’ amended

complaints pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615

(West 2020)).

¶ 13 On October 4, 2021, the trial court dismissed the plaintiffs’ complaints with prejudice.

Relying on Midwest, the trial court found that the plaintiffs could not pursue an action for damages;

rather, they could only seek restitution. The trial court rejected the plaintiffs’ argument that their

unjust enrichment claims essentially sought restitution. Relying on Board of Managers of Hidden

Lake Townhome Owners Ass’n v. Green Trails Improvement Ass’n, 404 Ill. App. 3d 184, 193

(2010), the trial court found that unjust enrichment was based on an implied contract between the

parties. Because the Act governed the relationship between the parties, the trial court found there

was nothing implied between the plaintiffs and the defendants. As such, the trial court found that

the plaintiffs unjust enrichment claim failed. As the trial court found that the plaintiffs had failed

to allege a valid cause of action, it dismissed their complaints with prejudice.

¶ 14 The plaintiffs thereafter filed a motion to reconsider. On October 28, 2021, following a

hearing, the trial court denied the plaintiffs’ motion. The trial court explained:

“But you chose to go on one—one count of unjust enrichment. There was plenty of

opportunity in advance of our last court date to have sought to amend your complaint.

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I am not going to drag this thing out any longer. Its life *** as far as the trial court

is concerned has ended.”

¶ 15 Following the trial court’s ruling, the plaintiffs filed a timely notice of appeal.

¶ 16 II. ANALYSIS

¶ 17 On appeal, the plaintiffs argue that (1) the trial court erred in dismissing their complaint

because their existing pleadings properly sought restitution; (2) even if their complaint

insufficiently sought restitution, they should be allowed to amend their complaint because they

can state a cause of action for restitution; and (3) this court should hold that an implied cause of

action exists for violation of the Act.

¶ 18 The trial court’s decision to grant a section 2-615 motion to dismiss is subject to de novo

review. Luise, Inc. v. Village of Skokie, 335 Ill. App. 3d 672, 685 (2002). The question is “whether

the allegations in the complaint, when viewed in a light most favorable to the plaintiff, are

sufficient to state a cause of action upon which relief can be granted.” Id. A motion to dismiss

pursuant to section 2-615 challenges the legal sufficiency of the complaint by claiming defects

exist on the face of the complaint. Cwikla v. Sheir, 345 Ill. App. 3d 23, 29 (2003). In considering

a section 2-615 motion to dismiss, “the court may not consider affidavits, products of discovery,

documentary evidence not incorporated into the pleadings as exhibits, or other evidentiary

materials.” Id. This court will affirm the dismissal based only on the pleadings where this court

finds “no set of facts can be proven which would entitle the plaintiff to the relief sought.” Id.

¶ 19 As the trial court correctly stated, Illinois courts have considered what is the proper way

for a litigant to recover fees that were improperly assessed under the Act. In Midwest, the

reviewing court explained what remedies a litigant may (and may not) seek to recover the wrongly

assessed fees:

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“We find that plaintiffs do not have a basis to pursue a private action to impose tort

liability on defendants ***, and consequently, they do not have a basis upon which to seek

damages to compensate for costs and expenses beyond restitution. However, plaintiffs can

proceed with a declaratory action, similar to the mandamus action pursued by the plaintiffs

in Gassman [v. Clerk of the Circuit Court of Cook County, 2017 IL App (1st) 151738].

Much like the mandamus action by the plaintiffs in Gassman, plaintiffs here need not

pursue a private right of action under the Clerks of Courts Act in seeking the equitable

relief of a declaratory judgment and return of the fees unlawfully imposed in the form of

restitution.” Midwest, 2018 IL App (1st) 163230, ¶ 52.

Based on Midwest, a litigant may seek restitution for the return of wrongly assessed fees by the

county circuit court clerk; he may not seek damages. Id.

¶ 20 The plaintiffs here did not specifically request restitution. Rather, they asserted a claim for

unjust enrichment, which they point out includes as a remedy restitution. The doctrine of unjust

enrichment does not apply to the facts of this case. As our court in Board of Managers of Hidden

Lake Townhome Owners Ass’n v. Green Trails Improvement Ass’n, 404 Ill. App. 3d 184, 193-94

(2010), explained:

“To state a cause of action for unjust enrichment, a plaintiff must allege that the

defendant unjustly retained a benefit to the plaintiff’s detriment and that the defendant’s

retention violated the fundamental principles of justice, equity, and good conscience.

[Citation]. Unjust enrichment is based on an implied contract, and the theory does not apply

where there is a specific contract that governs the relationship of the parties. [Citation].

Damages in an unjust-enrichment claim are restitution measured by the defendant’s gain,

not the plaintiff’s loss. [Citation].” Id.

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¶ 21 Here, there was not an implied contract between the parties. Rather, the parties’

relationship was governed by the Act. As the doctrine of unjust enrichment is inapplicable to the

case at bar, the plaintiffs’ attempt to use that doctrine as a basis to claim restitution fails.

¶ 22 We also reject the plaintiffs’ argument that because they indicated in the paragraphs setting

forth the proposed class that they wanted “the return of unlawful fees collected” and that the

“Defendant should be required to refund the fees to Plaintiff and the members of the Class,” they

argued sufficiently they were seeking restitution. In making this argument, the plaintiffs point to

Midwest, where the reviewing court held that the plaintiff’s request for a return of fees collected

pursuant to section 27.2a(g) of the Act should be construed as one for restitution. Midwest, ¶ 50.

In making that determination, the Midwest court noted that the trial court had ruled prior to

Gassman being decided. As such, the Midwest court explained that the plaintiff’s claim should be

“construed as one for restitution, and not attempting to impose tort liability or damages on the

Clerk.” Id.

¶ 23 Here, unlike in Midwest, there was ample authority available for the plaintiffs as to how to

properly seek a return of fees improperly collected under section 27.2a(g) of the Act. Based on

that authority, there was no basis for the trial court (or this court) to construe the plaintiffs’ prayer

for relief requesting damages against the Clerk as really a request for restitution. Accordingly, we

hold that the trial court correctly determined that the plaintiffs’ complaints failed to state a valid

cause of action.

¶ 24 We next turn to whether the trial court erred in dismissing the plaintiffs’ complaints with

prejudice. Section 2-612(a) of the Code authorizes the court to permit amendments where the

pleadings fail to sufficiently define the issues before the court. 735 ILCS 5/2-612(a) (West 2020).

The section further provides, “[n]o pleading is bad in substance which contains such information

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as reasonably informs the opposite party of the nature of the claim or defense which he or she is

called upon to meet.” 735 ILCS 5/2-612(b) (West 2020). Leave to amend should be freely

exercised so a party may fully present his cause of action. Henderson-Smith & Associates, Inc. v.

Nahamani Family Service Center, Inc., 323 Ill. App. 3d 15, 26 (2001). If a plaintiff can state a

cause of action by amending its complaint, dismissal with prejudice on the pleadings should not

be granted. Id.

¶ 25 In determining whether it is appropriate to allow the plaintiff an opportunity to amend the

complaint, the court must consider whether (1) the proposed amendment would cure the defective

pleading, (2) the other parties would be prejudiced or surprised by the proposed amended

complaint, (3) the plaintiff had previous opportunities to amend the complaint, and (4) the

proposed amendment is timely. Loyola Academy v. S & S Roof Maintenance, Inc., 146 Ill. 2d 263,

273 (1992). We review the court’s decision to dismiss a complaint with prejudice for an abuse of

discretion. Vogt v. Round Robin Enterprises, Inc., 2020 IL App (4th) 190294, ¶ 15. A court abuses

its discretion only if it acts arbitrarily, without the employment of conscientious judgment that

exceeds the bounds of reason and ignores recognized principles of law; or if no reasonable person

would take the position adopted by the court. Payne v. Hall, 2013 IL App (1st) 113519, ¶ 12.

¶ 26 The plaintiffs insist that if they can state a cause of action by amending their complaints,

the trial court should not dismiss their complaints with prejudice. As set forth above, when

considering whether the trial court erred in not allowing a party to amend its complaint, our review

is guided by two principles: (1) if a plaintiff can state a cause of action by amending his complaint,

his complaint should not be dismissed with prejudice; and (2) the trial court has discretion whether

to allow a party to amend its complaint. The plaintiffs focus only on the first principle and infer

that the trial court is mandated to allow a party to file an amended complaint if he can state a viable

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cause of action. However, the second principle clearly refutes that inference. As set forth by our

supreme court in Loyola Academy, there are various situations in which a trial court may deny

leave to amend a complaint even if an amended complaint could state a viable cause of action.

One of those situations is if the trial court has already given the plaintiff an opportunity to amend

his complaint. See On Tap Premium Quality Waters, Inc. v. Bank of Northern Illinois, N.S., 262

Ill. App. 3d 254, 264 (1994) (trial court did not abuse its discretion in dismissing complaint with

prejudice because it had given the plaintiff multiple opportunities to amend its complaint); see also

Uskup v. Johnson, 2020 IL App (1st) 200330, ¶36 (trial court improperly dismissed the plaintiff’s

complaint with prejudice before giving the plaintiff an opportunity to amend his complaint).

¶ 27 Here, the plaintiffs filed their initial complaints in 2017. The trial court then stayed the

proceedings to allow the reviewing courts to provide guidance on the proper interpretation of the

Act. After the Appellate Court issued its decision in Midwest, the trial court gave the plaintiffs the

opportunity to amend their complaint. In 2021, four years after the plaintiff had filed their initial

complaint and after several appellate decisions had been issued providing further guidance on how

to properly plead an action under the Act, the trial court dismissed the plaintiffs’ complaint with

prejudice. Based on that span of time and because the plaintiffs had been given the opportunity to

conform their pleadings to existing law, the trial court did not abuse its discretion in dismissing

the plaintiff’s complaint with prejudice. See On Tap Premium Quality Waters, 262 Ill. App. 3d at

264.

¶ 28 The plaintiffs’ final contention is that, even if we determine that they did not properly seek

restitution, we should reverse anyway because the Clerk’s violation of the Act provides them with

a private cause of action that allows them to seek damages. The plaintiffs acknowledge that the

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Midwest court rejected this argument, but they ask us to depart from that authority. We decline to

do so.

¶ 29 In Midwest, the reviewing court explained that in order to seek tort damages under section

27 of the Act, the plaintiff must demonstrate that a private right of action is either expressly granted

or implied in the statute. The Midwest court then noted the four-part test our supreme court has

outlined to determine whether a statute implies a private right of action:

“ ‘(1) the plaintiff belongs to the class for whose benefit the statute was enacted; (2) the

plaintiff's injury is one the statute was designed to prevent; (3) a private right of action is

consistent with the underlying purpose of the statute; and (4) implying a private right of

action is necessary to provide an adequate remedy for the statute's violation.’ ” Midwest,

2018 IL App (1st) 163230, ¶ 42, quoting Marshall v. County of Cook, 2016 IL App (1st)

142864, ¶ 12, citing Fisher v. Lexington Health Care, Inc., 188 Ill. 2d 455, 460 (1999).

¶ 30 Relying on Marshall, The Midwest court then determined that fees imposed by section

27.2a(g) are intended to compensate for the financial costs of operating the Clerk’s office in

handling litigants’ pleadings and motions. Midwest, 2018 IL App (1st) 163230, ¶ 47. It is not

meant to benefit litigants such as plaintiffs. Id. As the Marshall court specifically held, the Act is

intended to “benefit counties that want to reduce court security costs or establish and maintain

document storage or automated recordkeeping systems” and a private right of action is inconsistent

with the purpose of the Act and is not necessary to provide an adequate remedy. Id., quoting

Marshall, 2016 IL App (1st) 142864, ¶ 13. Accordingly, the Midwest court held that the plaintiffs’

only remedy was through restitution and not through a private cause of action. Midwest, 2018 IL

App (1st) 163230, ¶ 52.

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¶ 31 The plaintiffs insist that Midwest court erred in relying on Marshall as that case is

distinguishable. The plaintiff raised a similar argument in Midwest which the court rejected. Id.

¶ 44. We believe that the Midwest court properly relied on Marshall in determining that the

purpose of the Act is to facilitate the running of the Clerk’s office in terms of document

maintenance and security and is not meant to protect litigants from being charged too much. As

such, we believe the analysis in Midwest is sound and that it was correctly decided.

¶ 32 III. CONCLUSION

¶ 33 For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.

¶ 34 Affirmed.

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