2021 IL App (2d) 200512-U 

No. 2-20-0512 

Order filed September 16, 2021

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent 

except in the limited circumstances allowed under Rule 23(e)(l).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________ 

MARSHAL P. MORRIS, ) Appeal from the Circuit Court

) of Lake County.

Plaintiff-Appellant, ) 

) 

) 

v. ) No. 16-CH-390 

) 

ERIN CARTWRIGHT WEINSTEIN, ) 

as Clerk of the Circuit of Lake County, ) 

Illinois, DAVID STOLMAN, as ) 

Treasurer of Lake County, and ) 

LAKE COUNTY, ILLINOIS, a Body ) 

Politic and Corporate, ) Honorable 

) Daniel L. Jasica,

Defendants-Appellees. ) Judge, Presiding.

______________________________________________________________________________ 

JUSTICE HUTCHINSON delivered the judgment of the court.

Presiding Justice Bridges and Justice McLaren concurred in the judgment.

ORDER

¶ 1 Held: The circuit court did not abuse its discretion in denying plaintiff’s motion for class 

certification and did not err in determining that defendants’ tender mooted 

plaintiff’s individual claims.

¶ 2 Plaintiff, Marshal P. Morris, filed a putative class action complaint against Erin Cartwright 

Weinstein, in her official capacity as Lake County Clerk of the Circuit Court; David Stolman, as 

Lake County Treasurer; and Lake County, Illinois, (collectively, defendants) alleging that a filing 
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fee had been collected in violation of section 27.2(g) of the Clerks of Courts Act (Act). 705 ILCS 

105/27.2(g) (West 2016). After denying plaintiff’s motion for class certification, the circuit court 

granted defendants’ motion to dismiss the complaint as moot. We affirm.

¶ 3 I. BACKGROUND

¶ 4 On March 3, 2016, plaintiff filed a motion to reconsider a non-final order in a mortgage

foreclosure case in which he was a defendant (Lake County Circuit Court Case No. 12 CH 523). 

The clerk charged a $50 fee to file the motion. On March 11, 2016, plaintiff filed a putative class 

action complaint alleging that the clerk routinely charged a filing fee for motions to reconsider, 

vacate, or modify interlocutory orders, in violation of section 27.2(g) of the Act, which only 

authorizes the collection of filing fees for petitions to vacate or modify “any final judgment or 

order” of the court. See 705 ILCS 105/27.2(g)(1), (2) (West 2016). In the complaint, plaintiff 

defined the class as:

“Any and all individuals or entities from 2011 through the date of final judgment 

herein that paid a fee pursuant to 705 ILCS 105/27.2(g) for the filing of a motion to vacate 

and/or petition to reconsider, vacate or modify an interlocutory order in the Circuit Court 

of Lake County, Illinois.” 

¶ 5 The case remained pending for the next three years. On April 30, 2019, plaintiff filed a 

memorandum in support of his motion for class certification. On August 6, 2019, after it heard

oral arguments on plaintiff’s motion, the circuit court denied certification, stating that “plaintiff 

[had] not met his burden of establishing commonality and predominance for the proposed class,” 

and that it “[could] not conclude that the plaintiff has met his substantial burden to establish he 

would be an adequate representative of the entire class he proposes to represent.” 
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¶ 6 Immediately after the court stated that it was denying the motion for class certification, 

defense counsel stated for the record:

“[W]e offer to the plaintiff in open court satisfaction of the claims that relate to him 

which include the motion to vacate fees he filed of $50 each in 12 CH 523 and the filing 

fee incurred by him in the instant case of $282 in 16 CH 390. We tender these in open court 

to the plaintiff. (Tenders documents to [plaintiff’s counsel].)” 

Plaintiff’s attorney later left the courtroom with the written order denying class certification, as 

well as the sealed envelope that had been tendered during the proceedings.

¶ 7 Subsequently, plaintiff filed a motion to reconsider the order denying class certification as 

well as what he titled an “amended” motion for class certification. The circuit court denied the 

motion to reconsider. In a memorandum order dated March 10, 2020, the court denied the amended

motion for class certification, finding that the tender made in court mooted plaintiff’s individual 

claims. In the order, the court noted that, because the original motion for class certification had 

already been denied and no motion for class certification was pending at the time, the court 

considered the “amended” motion to be a “successive” or “second” motion for class certification. 

Further, the order stated that the court never expressly granted plaintiff leave to file the second 

motion. 

¶ 8 Defendants then filed a motion to dismiss pursuant to section 2-619 of the Code of Civil 

Procedure (Code), alleging the case was moot. In an order dated August 13, 2020, the court granted 

defendants’ motion, dismissing the case with prejudice based on the reasoning in its March 2020

memorandum order. The court also denied, on the basis of mootness, plaintiff’s motion seeking 

leave to amend the complaint and plaintiff’s third motion for class certification. Plaintiff timely 

appealed. 
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¶ 9 II. ANALYSIS

¶ 10 Plaintiff raises two issues on appeal: (1) whether the circuit court abused its discretion in 

denying plaintiff’s initial motion for class certification, and (2) whether the circuit court erred in 

concluding that defendants’ tender mooted the case. In response, defendants argue (1) that the 

circuit court did not abuse its discretion in denying plaintiff’s motion for class certification, and 

(2) that the tender rendered the case moot. We agree with defendants. 

¶ 11 We turn first to plaintiff’s contention that the circuit court abused its discretion in denying 

the motion for class certification. Under section 2-801 of the Code, 

“[a]n action may be maintained as a class action in any court of this State and a 

party may sue or be sued as a representative party of the class only if the court finds: 

(1) [“Numerosity.”] The class is so numerous that joinder of all members is 

impracticable. 

(2) [“Commonality.”] There are questions of fact or law common to the 

class, which common questions predominate over any questions affecting only 

individual members. 

(3) [“Adequacy.”] The representative parties will fairly and adequately 

protect the interest of the class. 

(4) [“Appropriateness.”] The class action is an appropriate method for the 

fair and efficient adjudication of the controversy.” 735 ILCS 5/2-801 (West 2020). 

The plaintiff bears the burden of establishing all four of these prerequisites. Cruz v. Unilock 

Chicago, 383 Ill. App. 3d 752, 761 (2008). The circuit court’s decision as to certification of a class 

falls within its own discretion, and its decision will not be reversed on appeal unless the court 

abused its discretion or applied impermissible legal criteria. Id. at 773. In an instance where the 
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circuit court has denied class certification, a reviewing court may reverse the decision only if it 

determines that “no other reasonable conclusion could be reached but that a class action would be 

appropriate.” (Internal quotation marks omitted.) Id. (quoting Health Cost Controls v. Sevilla, 365 

Ill. App. 3d. 795, 805 (2006)). 

¶ 12 At issue here are the second and third prerequisites: commonality and adequacy. As to 

commonality, plaintiff asserts that, because the circuit court found numerosity had been 

established, commonality had likewise been established. Plaintiff states,

“The Clerk admitted and the court agreed, that the Clerk had charged a fee 

to litigants to file motions to vacate, reconsider, or modify non-final orders in at 

least 900 instances. *** Therefore, the court clearly abused its discretion, because 

the Clerk’s admitted actions answer the common question – whether the Clerk 

violated the Act by charging fees to file motions seeking to vacate, reconsider, or 

modify non-final orders.” 

Plaintiff’s assertion oversimplifies the requirements of commonality.

¶ 13 To satisfy commonality, a plaintiff must establish that common questions of law or fact 

predominate over questions specific to individual class members. 735 ILCS 5/2-801(2) West 2020. 

The purpose of this prerequisite “is to ensure that the proposed class is sufficiently cohesive to 

warrant adjudication by representation.” Smith v. Illinois Cent. R.R. Co., 223 Ill. 2d 441, 448 

(2006). Further, “[t]he test for predominance is not whether the common issues outnumber the 

individual ones, but whether common or individual issues will be the object of most of the efforts 

of the litigants and the court.” Id. at 448-49. In other words, the plaintiff “must show that favorable 

adjudication of the claims of the named plaintiffs will establish a right of recovery in other class 

members.” (Emphasis added.) Cruz, 383 Ill. App. 3d at 773.
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¶ 14 Here, the record shows that the circuit court regarded the list of 900 instances where 

defendants had charged a fee as a list of potential class members, which the court determined to 

be sufficient to satisfy the numerosity requirement. The court made the numerosity determination 

without agreeing that defendants had charged a fee for “motions to vacate, reconsider, or modify 

non-final orders in at least 900 instances.” Rather, the court noted that “the list may not be exact 

or entirely correct because [defendants] did not go back and look at each individual underlying 

file.” 

¶ 15 In its analysis of commonality, the circuit court determined that plaintiff’s proposed class 

was not sufficiently cohesive because each class member’s claim would have to be individually 

reviewed to ascertain “whether an order that is the subject of a motion to vacate, modify, or 

reconsider was or was not a final order.” The court went on to state that: 

“Substantive issues that will control the outcome are identifying, notwithstanding 

the title that might have been ascribed to any motion filed, the true nature of the motion 

filed that [led] to the clerk-assessed fee, the timing of that motion, and how and whether 

Section 27.2(g) was properly applied to motions to reconsider, motions to modify, and to 

the various possible permutations of motions to vacate.

The proposed class includes parties that filed motions to vacate, some presumably 

within 30 days, some after 30 days; motions to reconsider non-final orders such as 

plaintiff’s motion; and motions to modify prior court orders. It also presumably includes 

defendants who filed motions to vacate dismissals without prejudice, which may or may 

not be final orders depending on when they were filed and the applicable statute of 

limitations.

The proposed class would also include motions to vacate previously entered 
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judgments of foreclosure in mortgage foreclosure cases such as the plaintiff’s, which the 

Second District Appellate Court has recently suggested are somewhat unique and may or 

may not warrant the imposition of a filing fee under Section 27.2(g).

The proposed class definition assumes or presumes that the orders challenged were 

all interlocutory, but this threshold issue will be contested and will need to be litigated. 

Different legal arguments apply in at least some of these different identified factual 

scenarios.” 

In short, the court determined that individual issues would be the object of most of the efforts of 

the litigants and the court. We agree with the court’s analysis as favorable adjudication of 

plaintiff’s claims would not have established a right to recovery for all or even many other class 

members. Accordingly, the circuit court reasonably concluded that plaintiff failed to establish 

commonality.

¶ 16 Because a class cannot be certified when a plaintiff fails to satisfy any one of the 

prerequisites, our analysis could end here. However, we turn next to the third prerequisite, which 

requires plaintiff to establish that he would fairly and adequately protect the interest of the class. 

Regarding adequacy, plaintiff simply states in his brief that he and the proposed class members 

“share an interest in the fact that the Clerk violated the Act by charging the improper filing fees.” 

Plaintiff argues that, based on this shared interest, the circuit court should have found that adequacy 

had been satisfied. Again, plaintiff oversimplifies the prerequisite.

¶ 17 To satisfy the adequacy prerequisite, a plaintiff must establish that the named 

representative will fairly and adequately protect the interest of the class. 735 ILCS 5/2-801(3) 

(West 2020). This prerequisite is meant “to ensure that all class members will receive proper, 

efficient, and appropriate protection of their interests in the presentation of the claim.” P.J.’s 
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Concrete Pumping Service, Inc. v. Nextel West Corp., 345 Ill. App. 3d 992, 1004 (2004). In 

analyzing adequacy, a circuit court may consider “the extent to which the class’s interests and 

those of existing parties converge or diverge, the commonality of legal and factual positions, the 

practical abilities of existing parties in terms of resources and expertise, and the vigor with which 

existing parties represent the class’s interests.” Walczak v. Onyx Acceptance Corp., 365 Ill. App. 

3d 664, 678 (2006). 

¶ 18 Addressing adequacy, the circuit court stated that plaintiff merely asserted his interests 

were coextensive with the proposed class while “offer[ing] nothing in support of this conclusion.”

The court noted that plaintiff would not be an appropriate representative for members of the class 

who “would appear to have unique and different legal arguments in advancing their claims,” such 

as those who paid a fee when filing a motion to vacate a judgment of foreclosure, because

“[p]laintiff would have no particular interest or incentive to litigate those issues as he would not 

be bound by or affected by the outcome.” The court concluded that plaintiff had failed to establish 

the adequacy prerequisite. 

¶ 19 On appeal, plaintiff again asserts that adequacy is satisfied because he and the class 

members share a common interest, and he argues that the circuit court abused its discretion by 

finding otherwise. However, in considering adequacy, a court may consider whether the parties’ 

legal and factual positions converge or diverge. See Walczak, 365 Ill. App. 3d at 678. Here, because 

the legal positions of the proposed class are divergent, the court reasonably concluded that plaintiff 

failed to establish adequacy.

¶ 20 Ultimately, we cannot say that the circuit court’s denial of class certification was 

unreasonable, as the record demonstrates that plaintiff failed to establish all for prerequisites for 
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establishing a class. Therefore, the court did not abuse its discretion in denying plaintiff’s motion 

for class certification. 

¶ 21 Plaintiff’s second contention is the circuit court erred in granting defendants’ motion to 

dismiss pursuant to section 2-619 of the Code, where defendants argued plaintiff’s claims were 

mooted by the tender. A motion to dismiss under section 2-619 of the Code admits the legal 

sufficiency of the pleading but asserts an affirmative defense or other matter that avoids or defeats 

the claim. Barber v. American Airlines, Inc., 241 Ill. 2d 450, 455 (2011). Section 2-619(a)(9) 

allows the involuntary dismissal of an action if “the claim asserted against defendant is barred by

[an] affirmative matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) 

(West 2020). On appeal, an order granting a section 2-619 motion to dismiss is reviewed de novo. 

Lawler v. University of Chicago Medical Center, 2017 IL 120745, ¶ 11. 

¶ 22 Plaintiff asserts that the tender was invalid for various reasons: that the tender consisted of

checks rather than cash; that plaintiff “rejected” the tender by later returning the envelope to 

defendants without opening it; that the tender did not provide the relief requested by plaintiff 

because his complaint requested relief for the class; and that defense counsel’s statement in court 

as to the contents of the envelope was not sufficient evidence of its contents because the statement 

was not made under oath or supported by an affidavit. In the alternative, plaintiff argues that a 

tender can moot a plaintiff’s individual claims if, and only if, the tender is made before the plaintiff 

files a motion for class certification. For the reasons below, we disagree with plaintiff.

¶ 23 Under Illinois law, a case becomes moot when a defendant tenders the essential relief 

demanded by the plaintiff. Alderson v. Weinstein, 2018 IL App (2d) 170498, ¶ 10. Further, “Illinois

law draws no distinction between an accepted offer of tender and an unaccepted offer of tender.” 

Id. ¶ 8. In a putative class action, a defendant’s tender cannot moot the named representative’s 
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claim while a motion for class certification is pending. Barber v. American Airlines, Inc., 241 Ill. 

2d 450, 456 (2011). Where a defendant makes a tender while a motion for class certification is 

pending, “the circuit court should hear and decide the motion for class certification before deciding 

whether the case is mooted by the tender.” Id. at 456-57. The rationale for this rule is that, while a 

motion for class certification is pending, the interests of all the class members are before the court, 

and their claims cannot be mooted even if the defendant makes the named plaintiff whole. Id. at

457. When a motion for class certification is not pending, however, the interests of the other class 

members are not before the court. Id. Accordingly, once the plaintiff’s claims have been mooted 

by tender, a live controversy no longer exists. Joiner v. SVM Mgmt., LLC, 2020 IL 124671, ¶ 46; 

Wheatley v. Board of Educ. of Township High School Dist. 205, 99 Ill. 2d 481, 486 (1984). 

¶ 24 Here, the circuit court denied plaintiff’s motion for class certification on August 6, 2019. 

Immediately after the court denied the motion, defendants tendered in open court the disputed $50 

filing fee along with an additional $282 to cover the filing fee in the putative class action. In its

March 2020 memorandum order, the circuit court ruled that plaintiff’s only viable claims had been 

rendered moot by that tender. 

¶ 25 Plaintiff argues that defendants’ tender was not valid. However, the facts of this tender 

align closely with the tender that mooted the plaintiffs’ claims in Alderson v. Weinstein, 2018 IL 

App. (2d) 170498. There, the plaintiffs filed a complaint against the clerk of the circuit court after 

the clerk charged a $50 fee for filing a motion to vacate a non-final order. Id. ¶¶ 3-4. After the 

complaint was filed, but before plaintiff’s filed a motion for class certification, the clerk issued a 

check for the disputed $50 fee and a check to refund the filing fee for the subsequent lawsuit. Id.

¶¶ 5-6. On appeal, this court held that the refund of the $50 filing fee provided the plaintiff with 

the essential relief they demanded. Id. ¶¶ 10-11. Further, after noting that Illinois law does not 
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draw a distinction between an accepted offer of tender and an unaccepted offer of tender, we held

that, for the purpose of evaluating mootness, it did not matter that the plaintiffs argued that they 

had not accepted the tender. Id. ¶ 8.

¶ 26 In the case at bar, unlike in Alderson, the motion for class certification was filed—and 

denied—before defendants tendered the refund checks. Plaintiff asserts that his claim cannot be 

mooted because the tender occurred after his motion for class certification had been filed; however,

this assertion is not supported by the current state of the law. In Illinois, the key issue is whether 

the interests of the class are before the court when the court considers the question of mootness. 

See Barber, 241 Ill. 2d at 457. Here, the circuit court denied the motion for class certification 

before determining that the tender mooted the plaintiff’s individual claims. This comports with the 

process outlined by our supreme court in Barber: that a circuit court should rule on the motion for 

class certification before considering whether the plaintiff’s individual claims would be mooted 

by the tender. Id. at 456-57 (citing Hillenbrand v. Meyer Medical Group, S.C., 308 Ill. App. 3d 

381, 392 (1999) (holding that the circuit court “was obligated to rule on the pending motion for 

class certification before considering the effect of tender on the named plaintiffs’ individual 

claims”)). 

¶ 27 As for plaintiff’s remaining arguments about the sufficiency of defendants’ tender, we note 

that defendants’ counsel’s representations were made in open court, on the record. In Joiner, our 

supreme court accepted counsel’s statements at oral argument that he brought the check the 

defendants had attempted to tender, as sufficient evidence of tender. Id., 2020 IL 124671, ¶ 55 

(citing Gorham v. Farson, 119 Ill. 425, 443 (1887)). We see no reason why the circuit court could 

not similarly credit counsel’s statements here. Accordingly, we agree with the circuit court that 
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defendants’ tender mooted plaintiff’s complaint and we affirm the court’s order granting 

defendants’ motion to dismiss.

¶ 28 III. CONCLUSION

¶ 29 For the reasons stated, we affirm the judgment of the circuit court of Lake County denying 

plaintiff’s motion for class certification and dismissing the complaint as moot. 

¶ 30 Affirmed.