Young v. Johnson ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Young v. Johnson, 2011 IL App (2d) 110287
Appellate Court J. NORMAN YOUNG, as Trustee of the J. Norman Young Trust, Dated
Caption September 16, 1993, and as Successor Trustee of the Nadyne H. Young
Trust, Dated September 16, 1993, Plaintiff-Appellant, v. CHRISTINE J.
JOHNSON, De Kalb County Collector; SHARON HOLMES, De Kalb
County Clerk; KATHLEEN HOLLONBECK, d/b/a KGH Investments;
DOUGLAS JOHNSON and SUSAN JOHNSON, d/b/a Tax Lien
Investments; and THE TOWN OF CORTLAND, Defendants-Appellees.
District & No. Second District
Docket No. 2-11-0287
Filed December 29, 2011
Held In an action arising from plaintiff’s failure to pay the special service area
(Note: This syllabus taxes on property he owned, the trial court properly dismissed plaintiff’s
constitutes no part of complaint seeking a declaratory judgment that the sale of the taxes was
the opinion of the court not an available remedy and seeking a writ of mandamus to compel
but has been prepared foreclosure on the delinquent parcels and an injunction based on
by the Reporter of plaintiff’s partial payment of the total tax obligation, since plaintiff could
Decisions for the not establish a “clear right” to relief and he forfeited his argument based
convenience of the on partial payment.
reader.)
Decision Under Appeal from the Circuit Court of De Kalb County, No. 10-MR-122; the
Review Hon. Melissa S. Barnhart, Judge, presiding.
Judgment Affirmed.
Counsel on Craig J. Cobine and John F. Philipchuck, both of Dommermuth, Brestal,
Appeal Cobine & West, Ltd., of Naperville, for appellant.
Robert K. Bush and Parker H. Johnson, both of Ancel Glink Diamond
Bush DiCianni & Krafthefer, PC., of Chicago, for appellee Town of
Cortland.
Panel PRESIDING JUSTICE JORGENSEN delivered the judgment of the
court, with opinion.
Justices Bowman and Hutchinson concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, J. Norman Young, appeals the dismissal under section 2-619 of the Code of
Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2010)) (affirmative defense) of his
complaint. For the following reasons, we affirm the dismissal.
¶2 I. BACKGROUND
¶3 This is plaintiff’s third appeal before this court concerning the imposition and collection
of a special service area tax (SSA tax) imposed upon property known as the Young Farm.
See Young v. Holmes, No. 2-09-0151 (modified upon denial of rehearing July 9, 2010)
(unpublished order under Supreme Court Rule 23) (affirming the trial court’s dismissal of
plaintiff’s challenge to the constitutionality and validity of the SSA); Young v. Johnson, No.
2-10-0020 (2010) (unpublished order under Supreme Court Rule 23) (remanding plaintiff’s
tax objection challenge to 2008 SSA taxes on limited grounds such as technical errors or
miscalculations–not constitutionality and validity). To recap this court’s prior rulings, we
found the SSA tax to be lawful overall, but we allowed plaintiff to challenge any
miscalculations through tax objection proceedings.
¶4 Plaintiff, along with 11 other owners, planned to develop the farm and the surrounding
area into a residential subdivision. The proposed development needed a sewage treatment
facility, which would be paid for with the SSA tax. Each owner would pay for the treatment
facility based on how many lots each planned to develop (at a cost of $8,000 per lot for
access to the treatment facility). Because plaintiff alone planned to develop over 500 lots, his
share of the SSA tax was quite large, totaling over $4 million to be paid in amounts of
approximately $270,000 per year over a number of years. Initially, the new treatment facility
would be funded by the sale of special revenue bonds, structured under a trust indenture
between the Town of Cortland and Wells-Fargo Bank. The bonds would be paid for from
-2-
revenues generated by the SSA tax. Plaintiff purchased $420,000 in bonds issued in
conjunction with the SSA, putting him in the unique position of being both an owner of
property subject to the SSA tax and a bondholder who would receive a portion of the SSA
tax proceeds.
¶5 Due to economic conditions, such as the decline in the housing market, the residential
development was never completed. However, plaintiff was still obligated to pay the SSA tax
for the treatment facility (which was completed). Plaintiff paid the 2008 general real estate
taxes for his undeveloped lots (approximately $2,000), but he did not pay the 2008 SSA tax
for his undeveloped lots (approximately $286,867).
¶6 As a result of plaintiff’s failure to pay the 2008 SSA tax, the county collector pursued the
statutory remedy of a tax sale. The statute authorizing SSA taxes states that “[t]he lien and
foreclosure remedies provided in Article 9 of the Illinois Municipal Code shall apply upon
non-payment of the special tax.” 35 ILCS 200/27-75 (West 2008). The Illinois Municipal
Code (the Code), article 9, division 2, under which the county levied the SSA tax, states:
“When the ordinance under which a local improvement is ordered provides that the
improvement shall be made wholly or in part by special taxation of contiguous property,
that special tax shall be levied, assessed, and collected, as nearly as may be, in the
manner provided in the section of this Division 2 providing for the mode of making,
assessing, and collecting special assessments.” (Emphasis added.) 65 ILCS 5/9-2-41
(West 2008).
Under division 2, delinquent special assessments or special taxes may be included in the
county collector’s annual tax sale. The county collector designates a day on which an
application shall be made to the court for an order of sale (65 ILCS 5/9-2-83 (West 2008)),
advertises the sale of delinquent taxes (65 ILCS 5/9-2-84 (West 2008)), and mails notice to
the delinquent property owners (65 ILCS 5/9-2-88 (West 2008)). Thereupon, the “general
revenue laws” of the state, i.e., the Property Tax Code (35 ILCS 200/1-1 et seq. (West
2008)), apply to the unpaid special taxes and to unpaid general taxes, with respect to the
annual tax sale. 65 ILCS 5/9-2-97 (West 2008); see also People v. Taylorville Sanitary
District, 371 Ill. 280, 283 (1939) (legislature intended collection of special taxes to be
enforced under general revenue law); People v. Forest Park Methodist Church, 408 Ill. 431,
434 (1951) (same). Under this authority, county officials sold the 2008 SSA tax on the farm
to a tax lien investment business.
¶7 In August 2010, plaintiff filed a three-count complaint, challenging the sale of the 2008
SSA tax. In count I, plaintiff sought a declaratory judgment that selling the 2008 SSA tax was
not a remedy available to the county in the face of plaintiff’s admitted nonpayment of the
SSA tax. Plaintiff insisted that the Town of Cortland was required, under article 9, division
3, of the Code, to foreclose on the tax delinquent parcels. Skipping to count III, which is
closely related to count I, plaintiff sought a writ of mandamus to compel the Town of
Cortland to foreclose on the tax delinquent parcels. In count II, plaintiff sought an injunction
on the sale of SSA taxes based on a partial payment of the total tax obligation (i.e., payment
of the general real estate taxes). The trial court dismissed the complaint and denied a motion
to reconsider. This appeal followed.
-3-
¶8 II. ANALYSIS
¶9 Plaintiff challenges the section 2-619 dismissal of his complaint. We review de novo the
trial court’s dismissal. Van Meter v. Darien Park District, 207 Ill. 2d 359, 368 (2003).
¶ 10 A. Counts I and III: Remedies Available to Municipality in the Face of
Nonpayment of the SSA Tax
¶ 11 Plaintiff argues that selling the 2008 SSA tax pursuant to article 9, division 2, of the
Code was not an appropriate remedy in the face of plaintiff’s admitted nonpayment of said
tax. He does not argue that defendants did anything improper under article 9, division 2; he
merely seeks a declaration that, instead, the remedies set forth in article 9, division 3, of the
Code (i.e., foreclosure) should have been followed. Plaintiff’s argument presents a question
of statutory interpretation, which we review de novo. People v. Robinson, 217 Ill. 2d 43, 54
(2005). The primary rule of statutory construction is to give effect to the legislature’s intent,
the best evidence of which is the plain language of the statute. Ultsch v. Illinois Municipal
Retirement Fund, 226 Ill. 2d 169, 181 (2007).
¶ 12 Specifically, plaintiff argues that defendants should have followed section 9-3-41, which
states:
“Whenever any assessment has been levied against any real estate, the assessment or
installments thereof shall become delinquent the first day of July next after the due date
thereof ***. *** Such municipality shall institute proceedings to foreclose and sell the
property for the payment of any assessment, or installment thereof, remaining delinquent
6 months after the delinquency date. Any holder of any bond or of any interest coupon
is entitled to summary relief by mandamus or injunction to enforce the provisions
hereof.” (Emphases added.) 65 ILCS 5/9-3-41 (West 2008).
¶ 13 Plaintiff argues that, because section 27-75 of the Property Tax Code (35 ILCS 200/27-75
(West 2008)) states that “[t]he lien and foreclosure remedies provided in Article 9 of the
Illinois Municipal Code shall apply to the non-payment of the special tax” (emphasis added),
the collecting municipality is required to use foreclosure remedies. There are numerous
problems with this argument.
¶ 14 First, there is some question as to whether division 3 even applies. At issue here is the
nonpayment of SSA taxes. Division 3 refers to assessments–not special taxes. 65 ILCS 5/9-3-
41 (West 2008). In contrast, division 2, under which the county sought a remedy, does refer
to special taxes. 65 ILCS 5/9-2-41 (West 2008). Second, and as is dispositive, the plain
language of section 27-75 of the Property Tax Code invites municipalities to use any of the
several remedies available under article 9. 35 ILCS 200/27-75 (West 2008). In point of fact,
section 27-75 uses the word “remedies,” in the plural, contradicting plaintiff’s position that
a municipality must use the one and only remedy, foreclosing on the property, set forth in
division 3. Certainly, there could be many instances where it would not be in either party’s
best interest to immediately foreclose (either on the tax lien or on the property itself–a
distinction plaintiff fails to clearly cite). Even division 3, if it could be said to apply, offers
-4-
more than one remedy: “lien and foreclosure” remedies. 65 ILCS 5/9-3-41 (West 2008).
Moreover, the introductory language of division 3 itself contradicts plaintiff’s position that
division 3 provides the exclusive remedy: “This Division 3 shall not be construed as
repealing any other laws with respect to local improvements [i.e., those set forth in Division
2], but shall be considered as an additional grant of power ***.” 65 ILCS 5/9-3-1 (West
2008).
¶ 15 Next, plaintiff challenges the trial court’s dismissal of count III, wherein, based on his
status as a bondholder, he sought a writ of mandamus to compel the town to foreclose on the
property. Plaintiff is in the unique position of being both an owner of tax delinquent property
and a bondholder who would receive the tax proceeds (had they been paid). Again, division
3 provides that bondholders may seek relief for unpaid assessments. 65 ILCS 5/9-3-41 (West
2008) (as quoted above).
¶ 16 A writ of mandamus is a summary writ that commands the officer to whom it is
addressed to perform a duty that the plaintiff is entitled to have performed and that the party
owing the duty has failed to perform. Illinois Wood Energy Partners, L.P. v. County of Cook,
281 Ill. App. 3d 841, 852 (1995). A complaint for mandamus must set forth all the material
facts to demonstrate a clear right to the writ. Doe v. Carlson, 250 Ill. App. 3d 570, 573
(1993). The plaintiff has the burden of setting forth every material fact necessary to show the
plain duty of the defendant. Wood Energy, 281 Ill. App. 3d at 852.
¶ 17 We reject plaintiff’s argument on the ground that he cannot establish a “clear right” to
relief, as is required in mandamus actions. As established above, municipalities are not
required to seek a remedy under article 9, division 3, for failure to pay SSA taxes. Therefore,
plaintiff does not have a clear right to compel the town or the county to follow article 9,
division 3.
¶ 18 The above rationale is dispositive. Therefore, we do not address plaintiff’s argument that
defendants did not attach an affidavit to a supporting document in their motion to dismiss,
i.e., the trust indenture between the town and Wells-Fargo Bank, which preemptively limited
bondholders’ ability to seek mandamus.
¶ 19 B. Count II: Injunction to Compel Acceptance of Partial Payment
¶ 20 Finally, plaintiff challenges the court’s dismissal of count II, wherein he sought an
injunction to compel defendants to accept a partial payment of his tax obligation (i.e., the
general real estate tax but not the SSA tax) and thereby, apparently, postpone the use of
article 9 remedies. Plaintiff cites no authority in support of his position, mentions the issue
only fleetingly in his initial brief, and completely abandons the issue in his reply brief.
Therefore, he has forfeited the argument. Ill. S. Ct. R. 341(h)(7) (eff. Sept. 1, 2006).
¶ 21 III. CONCLUSION
¶ 22 For the aforementioned reasons, we affirm the trial court’s dismissal.
¶ 23 Affirmed.
-5-