Velasquez v. Downer Place Holdings, LLC (In Re Cnty. Treasurer & Ex Officio Cnty. Collector of Kane Cnty.) ( 2018 )

2018 IL App (2d) 170418 No. 2-17-0418
Opinion filed October 15, 2018
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re APPLICATION OF THE COUNTY ) Appeal from the Circuit Court
TREASURER AND ex officio COUNTY ) of Kane County.
COLLECTOR OF KANE COUNTY, )
ILLINOIS, for Order of Judgment and Sale )
Against Real Estate Returned Delinquent )
For the Nonpayment of General Taxes for )
the Year 2011 and Prior Years )
) No. 15-TX-156
)
(Samuel N. Velasquez, Petitioner-Appellee, v. ) Honorable
Downer Place Holdings, LLC, Respondent­ ) Mary Katherine Moran,
Appellant). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
Presiding Justice Hudson and Justice Jorgensen concurred in the judgment and opinion.
OPINION
¶1 The circuit court of Kane County issued a tax deed for the property located at 40-46 West
Downer Place, Aurora (Property), to the petitioner, Samuel N. Velasquez, over the objections of
the respondent, Downer Place Holdings, LLC (DPH). DPH appeals, arguing that Illinois law
bars Velasquez from obtaining the tax deed, because he held an interest in the Property. We
find that he had no interest that would prevent issuance of the tax deed to him and affirm the
judgment.
¶2 I. BACKGROUND
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¶3 The Property is a two-story multi-unit commercial property that is zoned for mixed use.
In October 2012, the 2011 property taxes on the Property, which had not been paid, were sold to
MTAG, identified as the custodian for Alterna Funding 1, LLC (collectively, Alterna). After
extensions, the final date for any redemption of the taxes was October 28, 2015.
¶4 In 2013, the ownership of the Property was transferred to a land trust, the beneficiary of
which was DPH. James B. Liggett was the sole owner of DPH. The trustee for the land trust
was Standard Bank and Trust Company.
¶5 In April 2014, DPH leased one of the units at the Property to Velasquez and his wife,
Katie, to operate a wedding services business. The lease provided that, in addition to rent, the
Velasquezes would pay for the unit’s gas and electric service. The lease did not require them to
pay for property insurance, property taxes, or water.
¶6 Over the years, various mechanic’s liens were filed against the Property, and in 2014 a
foreclosure suit involving the Property was filed. Trial was scheduled for May 7, 2015.
¶7 Shortly before then, Velasquez and DPH began negotiations over a possible transfer to
the Velasquezes of some of DPH’s interest in the Property. On May 5, 2015, Velasquez and
DPH entered into a “trust share purchase agreement” (Agreement). The Agreement identified
Liggett—as “managing member” of the land trust that owned the Property—as the seller and the
Velasquezes as the buyers. Under the Agreement, the Velasquezes were to obtain a 51%
interest in DPH in return for paying $51,000 to DPH by October 27, 2015. The Agreement
stated that Velasquez “pledged by this document” that the 2011 taxes on the Property would “be
paid in full no later than October 27th 2015” and that Velasquez would “become the Managing
Member upon completion of full payment by or before October 27th 2015.” Further, the parties
agreed that Velasquez would pay off the mechanic’s liens against the Property. (Although this
condition does not appear in the written contract, both parties have agreed throughout this
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litigation that the condition was a part of the Agreement.) The Agreement was signed by
Liggett and Velasquez. That same day, Velasquez paid $23,000 to settle the foreclosure case
involving the mechanic’s liens. On May 7, 2015, the foreclosure case was dismissed.
¶8 On May 13, Liggett (as “manager” of DPH) executed a form assignment of 51% of
DPH’s interest in the land trust to the Velasquezes. However, the assignment contained a
limiting clause: “This assignment shall not be binding on the Trustee unless and until the
original thereof is lodged with the Trustee and its acceptance indicated thereon.” It is
undisputed that the trustee took no action with respect to the assignment, and neither party argues
that it ever became effective.
¶9 On May 18, both Liggett and Velasquez signed a 30-day notice terminating the tenancy
of one of the other tenants at the Property. However, about this time, the relationship between
Liggett and Velasquez began to deteriorate. On May 29, DPH’s attorney circulated a notice to
all of the tenants at the Property, advising them that Liggett was “still the managing member for
the ownership of the building” and that the tenant named in the 30-day notice was the building
manager. Nevertheless, on June 1, Velasquez paid one installment of the 2014 property taxes
on the Property, in the amount of $2028.29.
¶ 10 On June 2, an attorney representing Liggett and the trustee wrote the Velasquezes,
informing them that Liggett “elects to and hereby does terminate” the Agreement and that they
should “consider this Agreement as null, void and of no legal effect.” On June 11, Liggett (on
behalf of DPH) served the Velasquezes with a 10-day notice terminating their tenancy at the
Property. On June 23, the attorney for Liggett and the trustee wrote Velasquez’s attorney
regarding the 10-day notice. That letter stated that there were “no existing agreements in force
other than the lease agreement.” The letter further stated that the Velasquezes “never acquired
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more than a possessory interest in the property” and that the Agreement “was terminated some
time ago in writing.”
¶ 11 In early July 2015, DPH filed a forcible detainer (eviction) complaint against the
Velasquezes. The Velasquezes filed an answer that included an affirmative defense and
counterclaims for specific performance of the Agreement and for misrepresentation. The
affirmative defense alleged that DPH had induced Velasquez to enter into the Agreement and to
pay off the mechanic’s liens and the current property tax bill, thereby unjustly enriching DPH,
and thus no rent was due. The counterclaim for specific performance alleged that Velasquez
had partially performed their obligations under the Agreement and were willing to complete their
performance if DPH were required to proceed with the Agreement. The misrepresentation
counterclaim alleged that, although DPH had promised to convey 51% of its interest in the
Property, it never intended to perform this promise but instead always intended to revoke the
Agreement without refunding any of Velasquez’s payments on DPH’s behalf, as in fact it did.
The outcome of the eviction action does not appear in the record on appeal. Although the
Velasquezes’ occupancy at the Property appears to have continued, the record does not contain
evidence documenting the nature of that occupancy.
¶ 12 On July 16, 2015, Alterna filed a petition for a tax deed for the Property, alleging that the
time to redeem the taxes would expire on October 28, 2015, and that no one had yet done so.
Paragraphs 1 through 5 of the petition alleged that all of the conditions for issuance of a tax deed
had been met, and the relief sought was the issuance of such a deed once the redemption period
expired. On October 6, 2015, Velasquez bought the tax-sale certificate from Alterna. No one
redeemed the taxes by October 28, 2015. On November 24, 2015, Velasquez was substituted
for Alterna as the petitioner in the tax-deed proceeding.
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¶ 13 In April 2016, DPH filed an answer in which it argued that Velasquez should not receive
a tax deed because he had breached the Agreement, had unclean hands, and was subject to
promissory and judicial estoppel. That answer was stricken by agreement. In October 2016,
DPH filed a new answer. It admitted the allegations of paragraphs 1 through 5 of the petition
but asserted the affirmative defense of fraud, alleging that Velasquez induced DPH to enter into
the Agreement by promising to redeem the 2011 taxes on the Property but then failed to do so.
¶ 14 In November 2016, Velasquez moved for summary judgment. He noted that all of the
legal requirements for issuance of the tax deed had been met through DPH’s admissions of the
first five paragraphs of the petition for tax deed, and he argued that, in light of DPH’s June 2015
anticipatory repudiation of the Agreement, DPH could not sustain its affirmative defense of
fraud. He attached as exhibits copies of the letters dated June 2 and 23, 2015, terminating and
confirming the termination of the Agreement. DPH’s response to the motion did not refute or
even address the evidence of anticipatory repudiation, instead arguing that fraud in the
inducement was a permissible defense to a tax-deed petition under section 22-45 of the Property
Tax Code (Code) (35 ILCS 200/22-45 (West 2014)) and that DPH had asserted this defense.
DPH also attached an affidavit by Liggett describing the Agreement and charging that it was “an
artifice of fraud concocted by *** Velasquez to deprive [DPH] of its value in the Subject
Property.”
¶ 15 On December 20, 2016, the trial court heard argument on the motion for summary
judgment. The record does not contain any transcript or other record of that hearing. The
order entered that day stated:
“[T]he court having reviewed the briefs, pleadings and oral argument of the
parties, it is hereby ordered that petitioner’s motion for summary judgment is granted as
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to [the] affirmative defense of fraud. The court finds that there is no issue of material
fact regarding fraud in procurement of the tax deed.”
The order continued the case for prove-up on January 10, 2017.
¶ 16 On January 10, 2017, Velasquez and DPH appeared through their attorneys, and
Velasquez filed an application for an order directing the issuance of a tax deed. A wrinkle
arose when Velasquez’s attorney informed the court that outside the courtroom he had met John
Grafft, who claimed to be the record owner of the Property. Grafft produced a deed recorded
on December 29, 2016, conveying the Property to Grafft from a land trust held at the State Bank
of Geneva (Geneva bank). Velasquez’s attorney stated that, in researching the title to the
Property for the prove-up, he had discovered that, in September 2015, the trustee of the land trust
that owned the Property had conveyed the deed to the Geneva bank land trust, which in turn
conveyed it to Grafft. The attorney did not know whether DPH or Liggett was a beneficiary of
the Geneva bank land trust. DPH’s attorney stated that he was unaware of any of these
purported conveyances. Grafft addressed the court and stated that he was “happy to hand over
all interest in the property” to Velasquez and that he had no objection to the issuance of a tax
deed. The court continued the prove-up for one week to allow the filing of the prove-up
transcript and the presentation of original receipts showing that Velasquez had paid the
outstanding taxes for all years from 2012 through the present, as required by the Code. The
written order stated that the matter was continued to January 17, 2017, “for the entry of an order
directing the Kane County clerk to issue a tax deed.”
¶ 17 On January 17, 2017, the trial court granted Grafft time to file a pleading regarding his
standing to be heard in the tax-deed proceedings and any objections he might have to the
issuance of the tax deed, and allowed Velasquez a brief time after that to file any response. The
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issue of Grafft’s standing and any objections would be heard on February 28, 2017. The order
noted that, although Liggett was present in court, his attorney was not.
¶ 18 On February 27, 2017, DPH filed a handwritten motion to vacate the grant of summary
judgment. On February 28, 2017, the trial court entered two orders. The first order, which
noted that Liggett appeared that day without his attorney, struck the motion to vacate and stated
that Grafft had withdrawn any objections to Velasquez’s petition for a tax deed. The second
order directed the Kane County clerk to issue a tax deed for the Property to Velasquez.
¶ 19 DPH subsequently retained another attorney and filed a motion to vacate the order of
February 28, 2017, granting Velasquez the tax deed. DPH argued that its counsel had not been
present and that Liggett had not realized that the issuance of the tax deed could occur on that
date. It also argued that the affirmative defenses raised in its original answer to the tax-deed
petition had never been ruled on and should be heard. Velasquez responded that those
affirmative defenses were rendered a nullity by DPH’s amended answer, which superseded its
original pleading. Fraud was the only affirmative defense raised in the amended answer, and
the trial court had granted summary judgment in Velasquez’s favor on that defense. Velasquez
also noted that, even if Liggett was not represented at the January 17 and February 28 court
dates, Liggett himself was present and the issuance of the tax deed had been before the court
since January 10 and was delayed only to allow full exploration of Grafft’s interest and to hear
any objections. The trial court denied the motion to vacate on May 4, 2017, and DPH appealed.
¶ 20 II. ANALYSIS
¶ 21 DPH appeals the orders entered December 20, 2016 (granting summary judgment in
favor of Velasquez), February 28, 2017 (directing the issuance of the tax deed), and May 4, 2017
(denying the motion to vacate). Its primary argument is that Velasquez is barred from receiving
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the tax deed because, at the time he bought the tax-sale certificate, he held an interest in the
Property. Thus, it argues, the trial court erred in granting summary judgment for Velasquez.
¶ 22 A motion for summary judgment is properly granted where the pleadings, depositions,
admissions, and affidavits establish that no genuine issue of material fact exists and that the
moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005 (West 2016);
Gaylor v. Village of Ringwood, 363 Ill. App. 3d 543, 546 (2006). Although summary judgment
has been called a “drastic measure,” it is an appropriate tool to employ in the expeditious
disposition of a lawsuit in which “ ‘the right of the moving party is clear and free from doubt.’ ”
Morris v. Margulis, 197 Ill. 2d 28, 35 (2001) (quoting Purtill v. Hess, 111 Ill. 2d 229, 240
(1986)). We review de novo the grant of summary judgment. Valfer v. Evanston
Northwestern Healthcare, 2016 IL 119220, ¶ 19. The same standard of review applies to
purely legal issues of contract and statutory construction. Avery v. State Farm Mutual
Automobile Insurance Co., 216 Ill. 2d 100, 129 (2005); Lee v. John Deere Insurance Co., 208 Ill.
2d 38, 43 (2003).
¶ 23 We note that the record does not include any transcript or other report of the hearings that
gave rise to the orders being appealed, including the hearing on the motion for summary
judgment. Thus, we do not know the basis for the trial court’s rulings.
“The burden rests on the appellant to provide a sufficient record to support a claim of error,
and in the absence of such a record, the reviewing court will presume that the trial court’s
order was in conformity with established legal principles and had a sufficient factual
basis. Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984). ‘[I]n the absence of a proper
record a reviewing court may dismiss an appeal or, in the alternative, summarily affirm the
judgment of the trial court.’ ” Marx Transport, Inc. v. Air Express International Corp.,
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379 Ill. App. 3d 849, 853 (2008) (quoting Landau & Associates, P.C. v. Kennedy, 262 Ill.
App. 3d 89, 92 (1994)).
“On the other hand, the failure to present a report of proceedings does not require automatic
dismissal or affirmance where issues can be resolved on the record as it stands.” (Internal
quotations omitted.) Id. Even where we do not know the basis for the trial court’s decision, we
may affirm that decision if it is supported by the record as a whole, regardless of whether our
decision is based on the same ground. Ultsch v. Illinois Municipal Retirement Fund, 226 Ill. 2d
169, 192 (2007).
¶ 24 A. Rule Precluding Owner, Mortgagee, or Lienor From Obtaining Tax Deed
¶ 25 DPH begins by noting that, under Illinois law, the holder of an ownership, mortgage, or
lien interest in property may not obtain a tax deed for that property. DPH argues that Velasquez
is similarly barred from obtaining the tax deed for the Property, because of his status as (1) a
lessee, (2) a “property manager,” or (3) someone who had contracted to purchase an ownership
interest in the Property. We outline the general rule and then consider whether any of
Velasquez’s roles fall within that rule.
¶ 26 In In re Application of Boone County Collector, 131 Ill. App. 3d 939, 941 (1985)
(Candlewick), we explained the general rule that, where more than one person holds an interest
in property, “an owner or mortgagee, because of its interest in the property and [its] obligation to
pay the taxes on it, may not purchase the property at a tax sale and thereby cut off the interest in
the property of the other party.” We held that the same rule applied to lienors. Id. at 943.
“The rationale for this rule is that equity regards the land as a common fund for
the payment of all liens and mortgages and it would be inequitable and a fraud for one
lienor to acquire title to the land by a tax sale and use it to destroy the claim of another
lienor or mortgagee. The lienor is authorized to redeem from the tax sale and equity
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will not allow him to acquire the title for an inconsiderable sum when he was authorized
to remove the trifling incumbrance by redemption.” Id. at 941.
We noted that section 235a of the Revenue Act of 1939 (Revenue Act) 1 prohibited anyone who
was “responsible for the payment of the delinquent taxes” from purchasing at a tax sale. Id.
(quoting Ill. Rev. Stat. 1983, ch. 120, ¶ 716a). In using this language, we explained, the
legislature intended to preclude not only owners but also mortgagees and lienors—those who had
a duty to pay the taxes in order to protect their security interest in the property—from obtaining a
tax deed. Id. at 944-45. Instead, when an owner, mortgagee, or lienor purchases at a tax sale,
its payment is treated as a payment of the taxes rather than a purchase. Id. at 946. In the years
since Candlewick was decided, this rule has been consistently applied. See, e.g., In re
Application of County Treasurer & Ex Officio County Collector, 2017 IL App (4th) 160707, ¶ 27
(affirming trial court’s denial of tax deed to lienholder); Goldberg v. Michael, 328 Ill. App. 3d
593, 600 (2002) (noting “well-settled law” that homeowner’s association, “as a lienholder, may
not purchase the tax certificate”).
¶ 27 In Candlewick, we held that the persons who are “responsible for the payment of
delinquent taxes” under section 235a of the Revenue Act generally are the same persons who
have the right to redeem the taxes. 2 See Candlewick, 131 Ill. App. 3d at 943. Section
1
The Revenue Act was the predecessor to the Code.
2
On appeal, Velasquez challenges this holding, arguing that these two groups—persons
responsible for paying taxes and persons who may redeem under section 21-345(a) of the
Code—are not necessarily the same. For instance, beneficiaries of land trusts may be responsible
for paying taxes, yet they are specifically prohibited from redeeming under section 21-345(a). 35
ILCS 200/21-345(a) (West 2014). We need not resolve this issue here, because we affirm the trial
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21-345(a) of the Code grants the right to redeem to “any owner or person interested in [the]
property.” 35 ILCS 200/21-345(a) (West 2014). DPH argues that Velasquez must be
considered a “person interested in the property” because he was (1) a lessee, (2) a property
manager, or (3) a contract purchaser of an interest in the Property, under the Agreement. We
examine each contention in turn.
¶ 28 1. Lessee
¶ 29 DPH argues that a leasehold is an interest in property and that lessees thus fall within the
category of persons who have the right to redeem taxes under section 21-345(a) of the Code.
However, section 21-345(a) does not define who has an interest in property—it simply states that
“[a] right to redeem property from any sale under this Code shall exist in any owner or person
interested in that property.” 35 ILCS 200/21-345(a) (West 2014). DPH has provided no legal
support for its assertion that a possessory interest such as a leasehold, standing alone, confers the
right to redeem taxes under section 21-345(a).
¶ 30 Although DPH cites case law for the proposition that the holder of a nonownership
interest such as a mortgage or lien may redeem, none of the cited cases involves a mere
possessory interest. See Candlewick, 131 Ill. App. 3d at 943 (lienholder); Monreal v. Sciortino,
238 Ill. App. 3d 475, 476 (1992) (person asserting equitable title to the property had filed a lis
pendens). Even Lomax v. Gindele, 117 Ill. 527, 530 (1886), which DPH cites for the
proposition that a redemption by one “co-tenant” inures to the benefit of all, actually involved
co-owners (“tenants in common”), not lessees. Although Monreal states that a person entitled
to redeem taxes “need only have an undefined interest in the real estate,” all of the cases it relies
court’s decision on other grounds.
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upon involve persons holding legal or equitable title or a security interest in the property.
Monreal, 238 Ill. App. 3d at 478.
¶ 31 The little case law that does touch on the issue of whether a possessory interest is
sufficient to confer a right to redeem cuts against DPH’s argument. In In re Application of the
Cook County Treasurer, 185 Ill. 2d 428, 435 (1998) (Loop Mortgage), our supreme court noted
that a mere occupant of property does not have the right to redeem under section 21-345(a).
This is consistent with the rule itself, which provides that those who have an obligation to pay
property taxes may not better their title by purchasing taxes. Candlewick, 131 Ill. App. 3d at
941. Ordinarily, lessees do not have the obligation to pay taxes on the property they rent.
Thus, the rationale for the rule does not apply to them and there is no reason to bar them from
obtaining tax deeds through tax purchases.
¶ 32 At oral argument, DPH argued that public policy reasons support extending the rule
barring those with ownership and security interests in property from receiving tax deeds to apply
to lessees as well. DPH notes that rents provide an income stream that owners might rely upon
for funds to pay property taxes, and it argued that a lessee can “manipulate” the tax-sale system
by failing to pay rent, thereby increasing the likelihood that the owner will be unable to pay the
taxes, the taxes will be sold, and the lessee can then swoop in and purchase them, thereby
depriving the rightful owner of its property. Leaving aside the attenuated and speculative
nature of this hypothetical chain of events, we reject the contention that this argument supports
the extension of the rule to lessees. Property owners have the obligation to pay property taxes
regardless of whether their properties are leased to tenants, and the burden of ensuring that they
have the funds to pay those taxes is properly placed on them. If a lessee fails to pay rent, the
owner has ample means of redress through eviction procedures, which include the ability to seek
past-due rent and other damages.
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¶ 33 There may be occasions in which a lessee owes a contractual duty to pay property taxes
under the terms of the lease, and in such circumstances, perhaps a lessee could be barred from
receiving a tax deed if the lessee’s failure to pay those taxes was the cause of the taxes being
sold. We need not decide this issue, however, as no such situation is before us. In this case,
nothing in the Velasquezes’ lease obligated them to pay property taxes. Further, as noted,
DPH’s argument that Velasquez’s possessory interest gave him the right to redeem under section
21-345(a) lacks any legal support. We therefore reject DPH’s argument that Velasquez’s status
as a lessee prevented him from obtaining a tax deed.
¶ 34 2. Property Manager
¶ 35 DPH next contends that Velasquez acted as a property manager, collecting rents and
exercising day-to-day control, and that this status made him a “person interested in the property”
under section 21-345(a) so that he should be barred from obtaining a tax deed for the Property.
As an initial matter, it is far from clear that Velasquez actually exercised any control over the
Property. Most of DPH’s citations to the record on this point are to the allegations of its
amended answer and affirmative defense. But allegations are not proof and are insufficient to
demonstrate the existence of a question of fact that would prevent the entry of summary
judgment. See Carruthers v. B.C. Christopher & Co., 57 Ill. 2d 376, 380 (1974) (in deciding a
motion for summary judgment, the court must consider “evidentiary facts” and the nonmovant
cannot rely solely on allegations to show a factual issue). The only actual evidence offered on
this point is Liggett’s assertion in an affidavit that DPH “ceded day-to-day management” of the
Property to Velasquez and the fact that in May 2015 Velasquez and Liggett both signed a 30-day
notice terminating a tenancy. DPH has not provided citations to the record that would further
illuminate the nature or duration of any control exercised by Velasquez.
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¶ 36 Even if we assume that Velasquez served as a property manager at some point, however,
DPH provides no legal authority whatsoever that a property manager is a “person interested in
the property” under section 21-345(a) of the Code. Instead, DPH merely relies on the bald
assertion that, as property manager, Velasquez “had an interest in the Property that likely gave
him the right, and the duty, to redeem the taxes.” This bare statement is no substitute for
reasoned argument or legal authority and thus DPH has forfeited this point. Ill. S. Ct. R.
341(h)(7) (eff. Jan. 1, 2016) (where a party does not offer any argument or meaningful authority
in support of that argument, the argument is forfeited); see also People ex rel. Illinois
Department of Labor v. E.R.H. Enterprises, Inc., 2013 IL 115106, ¶ 56. We therefore dismiss
this argument and turn to the last argument raised by DPH: that Velasquez acquired rights in the
Property under the Agreement that should prevent the issuance of a tax deed to him.
¶ 37 3. The Agreement to Purchase
¶ 38 Illinois law has long held that a contract purchaser (someone who has contracted to buy
property) “has an equitable interest in the property which gives him a right to redeem.” Loop
Mortgage, 185 Ill. 2d at 437 (citing Franzen v. Donichy, 9 Ill. 2d 382, 387 (1956)). DPH
argues that, because Velasquez signed the Agreement to acquire a majority interest in DPH (the
beneficial owner of the Property under the land trust), he therefore had the right to redeem and
should be barred from acquiring the Property through a tax sale. We have no quarrel with the
general principle that contract purchasers are within the category of persons who may redeem
under section 21-345(a) and who are barred from acquiring title through a tax sale to the property
they contracted to buy. However, we find that, because the evidence unquestionably establishes
that DPH repudiated the Agreement in June 2015 and that Velasquez elected to treat the
Agreement as terminated in response to the repudiation, Velasquez had no rights under that
contract and was not bound by it when he purchased the 2011 taxes from Alterna in October
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2015. As the Agreement was no longer in effect, Velasquez was no longer a contract purchaser
with a right to redeem and thus he was not barred from receiving a tax deed for the Property.
¶ 39 Anticipatory repudiation of a contract arises through “a manifestation by one party *** of
an intent not to perform its contractual duty when the time comes for it to do so even if the other
party has rendered full and complete performance.” Tower Investors, LLC v. 111 East Chestnut
Consultants, Inc., 371 Ill. App. 3d 1019, 1031 (2007). The expression of the intent not to
perform must be “definite and unequivocal.” In re Marriage of Olsen, 124 Ill. 2d 19, 24
(1988). “When one party to a contract repudiates his contractual duties before time for
performance the other party may elect to treat the contract as ended. In such cases the
nonbreaching party is not required to tender performance or to comply with conditions
precedent.” Builder’s Concrete Co. of Morton v. Fred Faubel & Sons, Inc., 58 Ill. App. 3d 100,
106 (1978); see also Tower Investors, 371 Ill. App. 3d at 1032 (“when one party repudiates a
contract, the nonrepudiating party is excused from performing”).
¶ 40 Here, Velasquez submitted evidence of anticipatory repudiation by DPH: the letter dated
June 2, 2015, stating that DPH was terminating the Agreement and that Velasquez should
consider it “null, void and of no legal effect,” and the letter of June 23, 2015, stating that there
were “no existing agreements in force other than the lease.” These statements were definite and
unequivocal manifestations of DPH’s intent not to perform its promises under the Agreement.
In response, Velasquez chose to treat the Agreement as ended. Notably, the record does not
disclose any argument by DPH (much less any evidence) that it did not intentionally and
unequivocally repudiate the Agreement in June 2015. Nor is there any evidence that DPH ever
withdrew this repudiation. Builder’s Concrete, 58 Ill. App. 3d at 105 (“[a]n anticipatory
repudiation continues in effect until affirmatively retracted by the repudiator”). Thus, it is
undisputed that the Agreement was no longer in force when Velasquez bought the 2011 taxes.
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¶ 41 In light of this evidence, the trial court was fully justified in granting summary judgment
in favor of Velasquez. As DPH conceded in its amended answer, all of the legal requirements
for the issuance of the tax deed had been met. Further, DPH could not prove its affirmative
defense of fraud because that defense relied upon the existence of the Agreement, which DPH
had repudiated months before Velasquez sought to redeem the taxes. As DPH had no legal
basis on which to oppose the issuance of the tax deed, summary judgment was appropriate.
Morris, 197 Ill. 2d at 35.
¶ 42 Although DPH does not dispute that it repudiated the Agreement, it argues that
Velasquez should have been judicially estopped from relying on that repudiation because, in his
answer to the eviction complaint, he asserted a counterclaim for specific performance of the
Agreement. “The doctrine of judicial estoppel applies when a party takes a position, benefits
therefrom, and then attempts to take a contrary position in a subsequent proceeding.” Johnson
v. Fuller Family Holdings, LLC, 2017 IL App (1st) 162130, ¶ 33. In order for judicial estoppel
to apply, the party to be estopped must have “(1) taken two positions, (2) that are factually
inconsistent, (3) in separate judicial or quasi-judicial administrative proceedings, (4) intending
for the trier of fact to accept the truth of the facts alleged, and (5) succeeded in the first
proceedings and received some benefit.” Id. ¶ 34 (citing Seymour v. Collins, 2015 IL 118432,
¶ 47). “Judicial estoppel must be proved by clear and convincing evidence.” Id.
¶ 43 Here, DPH has not shown either that Velasquez has taken factually inconsistent positions
or that he succeeded in the first proceeding. Taking the latter point first, there is no indication
in the record as to the outcome of the eviction case and thus DPH has not proved that Velasquez
was “successful” in that proceeding. More significantly, Velasquez has not taken two factually
inconsistent positions. In his affirmative defense and counterclaims in the eviction action,
Velasquez never alleged that the Agreement was still in effect. Rather, Velasquez alleged that
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he had partially performed his obligations under the Agreement by satisfying the mechanic’s
liens and making a payment toward the 2014 taxes, but that DPH then revoked the Agreement
without refunding any of the money paid on its behalf. Velasquez alleged that he and Katie
were ready and willing to proceed with their further obligations under the Agreement (including
redeeming the 2011 taxes) if DPH were ordered to perform its obligation to convey 51% of its
interest in the Property to them.
¶ 44 These allegations are not inconsistent with the argument that DPH repudiated the
Agreement or that the Agreement was ended by that repudiation. “A continued willingness
upon the part of the injured party to receive performance is an indication that, if the repudiator
will withdraw his repudiation, but not otherwise, the contract may proceed. It is not an
irrevocable election not to treat the renunciation as a breach.” Builder’s Concrete, 58 Ill. App.
3d at 105 (quoting Bu-Vi-Bar Petroleum Corp. v. Krow, 40 F.2d 488, 492 (10th Cir. 1930), citing
11 Walter H.E. Jaeger, Williston on Contracts § 1334 (3d ed. 1968)). Accordingly, Velasquez
is not judicially estopped from asserting that DPH repudiated the Agreement and that he was
therefore released from his obligation (and right) to redeem the 2011 taxes. As Velasquez was
not a contract purchaser when he bought the tax-sale certificate from Alterna, he was not barred
from obtaining a tax deed.
¶ 45 B. Remaining Arguments
¶ 46 Perhaps recognizing the paucity of legal support for its arguments that Velasquez was
barred from receiving a tax deed because of his status as a lessee, a property manager, or a
contract purchaser, DPH raised a new argument at oral argument: that Velasquez was actually a
lienholder, either because he had satisfied the mechanic’s liens against the Property and was
therefore entitled to seek reimbursement for that payment, or because he was a lessee and his
lease could be described as an encumbrance upon the Property. In this way, DPH belatedly
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sought to bring Velasquez within the ambit of Candlewick, which held that lienors may not
obtain a tax deed for the property against which they hold a lien.
¶ 47 As an initial matter, DPH is prohibited from raising this argument because it failed to
raise it earlier, either in the trial court or in its initial brief in this court. Our supreme court rules
mandate that the appellant’s opening brief must set out all of that party’s arguments on appeal
and the legal and record support for those arguments; “[p]oints not argued are waived and shall
not be raised in the reply brief, in oral argument, or on petition for rehearing.” Ill. S. Ct. R.
341(h)(7) (eff. Jan. 1, 2016); see also Hytel Group, Inc. v. Butler, 405 Ill. App. 3d 113, 127
(2010) (“A reviewing court will not consider arguments not presented to the trial court.”);
Jeanblanc v. Sweet, 260 Ill. App. 3d 249, 254 (1994) (arguments raised for the first time on
appeal, even from an order that we review de novo, are deemed forfeited).
¶ 48 Even if we were to consider this belated argument, DPH has not supported it with any
legal authority. DPH has cited no legal support for the proposition that the mere description of
a lease as an encumbrance on property means that every lessee is, legally speaking, equivalent to
a lienholder. And although Velasquez did settle the mechanic’s lien proceeding against the
Property, paying those liens, he has never placed a lien against the Property. Nor has DPH
identified any legal basis on which Velasquez could place such a lien. Thus, this argument is
forfeited both by the failure to raise it earlier and by the lack of any legal support provided by
DPH. Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016); E.R.H. Enterprises, 2013 IL 115106, ¶ 56.
We turn to DPH’s remaining arguments.
¶ 49 In an effort to convey its position that Velasquez engaged in fraudulent conduct by failing
to perform his promise to redeem the 2011 taxes on the Property, DPH asserts that his conduct
could possibly, in the context of tax-scavenger sales, be considered criminal. As DPH
concedes, however, tax-scavenger sales are not governed by the provisions of the Code that
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apply to the sale of annual taxes, such as the one at issue here. We therefore find its argument
to have little relevance here. DPH also argues that there were genuine disputes of material fact
that should have prevented the entry of summary judgment on its affirmative defense of fraud,
but it has not identified any. As discussed above, DPH never denied or put forward any
evidence challenging Velasquez’s contention that it had repudiated the Agreement and that he
thus was not a contract purchaser when he bought the tax-sale certificate. And any dispute over
whether Velasquez was a lessee or a property manager was immaterial, as it could not affect the
outcome of the case. DPH has not shown any reason why the trial court’s judgment should not
be affirmed.
¶ 50 III. CONCLUSION
¶ 51 The judgment of the circuit court of Kane County is affirmed.
¶ 52 Affirmed.
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