Vermillion County v. Ballinger ( 2021 )

NOTICE 2021 IL App (4th) 200344-U FILED
This Order was filed under June 28, 2021
Supreme Court Rule 23 and is NO. 4-20-0344 Carla Bender
not precedent except in the 4th District Appellate
limited circumstances allowed IN THE APPELLATE COURT
under Rule 23(e)(1).
Court, IL
OF ILLINOIS
FOURTH DISTRICT
In the Matter of the Application of the County Treasurer ) Appeal from the
and Ex-Officio Collector for Judgment and Order of Sale ) Circuit Court of
of Lands and Lots Returned Delinquent for Non-Payment ) Vermilion County
of General and Special Taxes and Assessments for the ) No. 16TX1
Year 2015 and Prior Years, )
)
Petition of VERMILION COUNTY, ILLINOIS, as )
Trustee for Tax Deeds, )
Petitioner-Appellee, )
v. ) Honorable
DENNIS D. BALLINGER, ) Charles C. Hall,
Respondent-Appellant. ) Judge Presiding.
______________________________________________________________________________
JUSTICE HARRIS delivered the judgment of the court.
Justices Cavanagh and Holder White concurred in the judgment.
ORDER
¶1 Held: The trial court did not err in denying respondent’s motions to dismiss the petition
for an order directing the issuance of a tax deed or in entering that order.
¶2 In January 2019, petitioner, Vermilion County, as trustee for the taxing districts
having an interest in the taxes and special assessments of certain properties, filed a petition for an
order directing the issuance of tax deeds concerning numerous parcels of real estate, seven of
which were owned by respondent, Dennis D. Ballinger. Respondent filed motions to dismiss the
petition, which the trial court denied. In July 2020, over respondent’s objection, the court granted
the petition and entered an order directing the issuance of tax deeds for the properties owned by
respondent. Respondent appeals, claiming the trial court erred in denying his motions to dismiss
and in ordering the issuance of tax deeds to petitioner because: (1) petitioner violated section 22-30
of the Property Tax Code (Code) (35 ILCS 200/22-30 (West 2018)) by failing to file an amended
petition for tax deed after extending the period of redemption from July 12, 2019, to August 9,
2019; (2) petitioner violated section 21-385 of the Code (id. § 21-385) by extending the period of
redemption prior to the date it was scheduled to expire; and (3) petitioner violated section 21-360
of the Code (id. § 21-360) by posting additional costs with the county clerk less than 30 days prior
to the expiration of the period of redemption.
¶3 I. BACKGROUND
¶4 On November 10, 2016, petitioner purchased delinquent real estate taxes for the
year 2015 and prior years on approximately 150 parcels of real property located in Vermilion
County (the Properties). Seven of these parcels were owned by respondent. Those parcels were:
(1) 802 Oakwood Ave., Danville, Vermilion County, Illinois, PIN 22-12-210-019, (2) N.
Alexander St., Danville, Vermilion County, Illinois, PIN 23-09-207-015, (3) 1031 E. Main St.,
Danville, Vermilion County, Illinois, PIN 23-09-207-023, (4) 702 S. Gilbert St., Danville,
Vermilion County, Illinois, PIN 23-17-113-001, (5) 702 S. Gilbert St., Danville, Vermilion
County, Illinois, PIN 23-17-113-006, (6) 718 S. Gilbert St., Danville, Vermilion County, Illinois,
PIN 23-17-113-007, and (7) E. 2700 N. Rd., Armstrong, Vermilion County, Illinois, PIN
11-23-400-003 (collectively, the Respondent’s Properties).
¶5 On January 14, 2019, petitioner filed with the trial court a petition for an order
directing the county clerk to issue tax deeds for the Properties (the Petition). In the Petition,
petitioner claimed that “more than three months and less than six months remain[ed] of the time
allowed by law within which redemption [could] be made.” At this time, the redemption period
for the Properties was scheduled to expire on July 12, 2019.
-2-
¶6 On April 17, 2019, pursuant to a motion filed by petitioner, the trial court extended
the period of redemption for the Properties from July 12, 2019, to August 9, 2019. Following entry
of the court’s order, in accordance with section 22-30 of the Code (id. § 22-30), petitioner provided
notice of the extended redemption period to each individual and entity entitled thereto.
¶7 On August 19, 2019, pursuant to section 2-619(a)(9) of the Code of Civil Procedure
(735 ILCS 5/2-619(a)(9) (West 2018)), respondent filed seven motions to dismiss the Petition,
each motion corresponding to one of the Respondent’s Properties. In his motions, respondent
alleged: (1) petitioner violated section 22-30 of the Code (35 ILCS 200/22-30 (West 2018)) by
failing to file an amended petition for tax deed after extending the period of redemption,
(2) petitioner violated section 21-360 of the Code (id. § 21-360) by posting subsequent years’ taxes
to the tax sale judgment and redemption record with the county clerk less than 30 days prior to the
expiration of the period of redemption, and (3) petitioner violated section 22-20 of the Code (id.
§ 22-20) in that the publication notice required under that statute was published in a community
outside the City of Danville.
¶8 In respondent’s motion to dismiss with respect to the property at 702 S. Gilbert St.
(PIN 23-17-113-001), respondent alleged as follows in support of his argument that petitioner
violated section 21-360 of the Code:
“A copy of the estimate of real estate redemption from the County Clerk’s
Office is attached hereto, marked Exhibit [B] and incorporated herein by reference
which provides that the taxes that were due at the time were $10,290.06 but as of
August 6th, 2019 an additional $4,000.00 was added because of the posting of those
subsequent years [sic] taxes in violation of the statute.”
Exhibit B to respondent’s motion was an “Estimate of Real Estate Redemption” from the
-3-
Vermilion County clerk which shows the “Total Redemption Amount” for the property located at
702 S. Gilbert St. on July 23, 2019, was $10,290.06. In the margins of that document is the
following unsigned, handwritten statement: “Per CO clerk 2018 sub tax added on 7-24-19 new
Red Amount $14,048.11 as of 8-6-19.” Although, in his other motions to dismiss, respondent
generally asserted that petitioner violated section 21-360 of the Code, he did not include any
specific factual allegations or attach any documents in support of those assertions, as he did in his
motion regarding the property at 702 S. Gilbert St. (PIN 23-17-113-001).
¶9 On August 26, 2019, the trial court entered an order directing the county clerk to
issue tax deeds to petitioner for all Properties other than the Respondent’s Properties.
¶ 10 In September 2019, petitioner filed a consolidated reply to respondent’s motions to
dismiss. In its reply, petitioner claimed: (1) it was not required to amend the Petition after
extending the redemption period, (2) respondent forfeited his allegation of error regarding the
improper posting of subsequent year taxes because he failed to file a redemption under protest
pursuant to section 21-380 of the Code (id. § 21-380), and (3) its publication of notice of the
extended redemption period was not improper.
¶ 11 On October 11, 2019, the trial court conducted a hearing on respondent’s motions
to dismiss at which both parties presented argument through counsel. A month later, the court
entered a written order denying respondent’s motions to dismiss the Petition.
¶ 12 On July 7, 2020, the trial court conducted a hearing on the Petition with respect to
the Respondent’s Properties. At the hearing, respondent objected to the entry of the court’s order,
repeating the arguments he raised in his motions to dismiss. Over respondent’s objection, the court
granted the Petition and entered an order directing the county clerk to issue tax deeds to petitioner
for the Respondent’s Properties.
-4-
¶ 13 This appeal followed.
¶ 14 II. ANALYSIS
¶ 15 On appeal, respondent claims the trial court erred in denying his motions to dismiss
and in granting the Petition with respect to the Respondent’s Properties because: (1) petitioner
violated section 22-30 of the Code (id. § 22-30) by failing to file an amended petition for tax deed
after extending the period of redemption from July 12, 2019, to August 9, 2019; (2) petitioner
violated section 21-385 of the Code (id. § 21-385) by extending the period of redemption prior to
the date it was scheduled to expire; and (3) petitioner violated section 21-360 of the Code (id.
§ 21-360) by posting additional costs with the county clerk less than 30 days prior to the expiration
of the period of redemption. Each of respondent’s contentions raises issues of statutory
construction, which we review de novo. DG Enterprises, LLC-Will Tax, LLC v. Cornelius, 2015
IL 118975, ¶ 31, 43 N.E.3d 1014.
¶ 16 The primary goal of a reviewing court in construing a statute is to “interpret and
give effect to the legislature’s intent.” Dynak v. Board of Education of Wood Dale School District
7, 2020 IL 125062, ¶ 16, 164 N.E.3d 1226. “The best indication of that intent is the statutory
language, which, when clear and unambiguous, must be construed as written, without reading into
it exceptions, conditions, or limitations that the legislature did not express.” Elam v. Municipal
Officers Electoral Board for Village of Riverdale, 2021 IL 127080, ¶ 14. A statute’s words and
phrases should not be viewed in isolation but “should be considered in light of other relevant
provisions of the statute.” Home Star Bank and Financial Services v. Emergency Care and Health
Organization, Ltd., 2014 IL 115526, ¶ 24, 6 N.E.3d 128. “Even when there is an apparent conflict
between statutes, they must be construed in harmony if reasonably possible.” 1010 Lake Shore
Ass’n v. Deutsche Bank National Trust Co., 2015 IL 118372, ¶ 37, 43 N.E.3d 1005. Further, “each
-5-
word, clause and sentence of a statute must be given a reasonable construction, if possible, and
should not be rendered superfluous.” Home Star Bank and Financial Services, 2014 IL 115526,
¶ 24. Finally, “[i]n determining legislative intent, we may also consider the consequences that
would result from construing the statute one way or the other, and, in doing so, we presume that
the legislature did not intend absurd, inconvenient, or unjust consequences.” Id.¶ 17 Respondent first contends the trial court erred in denying his motions to dismiss
and in ordering the issuance of tax deeds because petitioner violated section 22-30 of the Code (35
ILCS 200/22-30 (West 2018)). Specifically, respondent contends that, pursuant to section 22-30,
petitioner was required to file an amended petition for tax deed after extending the period of
redemption from July 12, 2019, to August 9, 2019.
¶ 18 Section 22-30 of the Code provides, in relevant part:
“At any time within 6 months but not less than 3 months prior to the
expiration of the redemption period for property sold pursuant to judgment and
order of sale ***, the purchaser or his or her assignee may file a petition in the
circuit court in the same proceeding in which the judgment and order of sale were
entered, asking that the court direct the county clerk to issue a tax deed if the
property is not redeemed from the sale. ***
Notice of filing the petition and the date on which the petitioner intends to
apply for an order on the petition that a deed be issued if the property is not
redeemed shall be given to occupants, owners and persons interested in the property
as part of the notice provided in Sections 22-10 through 22-25, except that only one
publication is required.” Id.¶ 19 In his brief, respondent acknowledges petitioner initially complied with section
-6-
22-30 by filing the Petition on January 14, 2019, because that date was less than six months and
more than three months before the expiration of the redemption period on July 12, 2019. However,
respondent argues petitioner subsequently violated that statute when it extended the period of
redemption to August 9, 2019, because January 14, 2019, was 6 months and 26 days from that
date. Thus, respondent concludes, under the plain language of the statute, petitioner was required
to file an amended petition for issuance of a tax deed between six months and three months from
August 9, 2019.
¶ 20 As petitioner correctly points out, extensions to the period of redemption are not
governed by section 22-30 of the Code but are governed instead by section 21-385 of the Code.
Section 21-385 provides, in relevant part:
“The purchaser or his or her assignee of property sold for nonpayment of
general taxes or special assessments may extend the period of redemption at any
time before the expiration of the original period of redemption, or thereafter prior
to the expiration of any extended period of redemption, for a period which will
expire not later than 3 years from the date of sale, by filing with the county clerk of
the county in which the property is located a written notice to that effect describing
the property, stating the date of the sale and specifying the extended period of
redemption. *** If prior to the expiration of the period of redemption or extended
period of redemption a petition for tax deed has been filed under Section 22-30,
upon application of the petitioner, the court shall allow the purchaser or his or her
assignee to extend the period of redemption after expiration of the original period
or any extended period of redemption, provided that any extension allowed will
expire not later than 3 years from the date of sale ***. If the period of redemption
-7-
is extended, the purchaser or his or her assignee must give the notices provided for
in Section 22-10 at the specified times prior to the expiration of the extended period
of redemption.” Id. § 21-385.
¶ 21 Nothing in section 21-385 requires a tax purchaser to file an amended petition for
the issuance of a tax deed after initially filing a petition within the time frame set forth in section
22-30. Moreover, as noted by petitioner, adopting respondent’s interpretation of section 22-30
would lead to an absurd result because both section 22-30 and section 21-385 require the tax
purchaser to send notice in accordance with section 22-10 of the Code (id. § 22-10). Section 22-10
requires that, to be entitled to a tax deed, a tax purchaser must first send a notice—entitled “TAKE
NOTICE”—to “owners, occupants, and parties interested in the property” informing them of “the
sale and the date of expiration of the period of redemption.” Id. These notices must be given “not
less than 3 months nor more than 6 months prior to the expiration of the period of redemption.”
Id. As stated above, section 22-30 requires that, after a petition for tax deed is filed, the petitioner
must provide notice of the filing and of the date the petitioner intends to apply for an order on the
petition “as part of the notice provided in Sections 22-10.” Id. § 22-30. Similarly, section 21-385
requires that, if the period of redemption is extended, the tax purchaser must “give the notices
provided for in Section 22-10 at the specified times prior to the expiration of the extended period
of redemption.” Id. § 21-385. Construing these provisions together, we agree with petitioner’s
assertion that, because sections 22-30 and section 21-385 both require a tax purchaser to give
notice under section 22-10, “requiring an amended petition for tax deed would be nonsensical
given that property owners would already be made aware of the extension of the redemption period
and all other information required to be given in [s]ection 22-10.” For these reasons, we find that,
where a tax purchaser has filed a petition for tax deed within the time specified in section 22-30,
-8-
the tax purchaser is not required to file an amended petition after extending the redemption period
in accordance with section 21-385.
¶ 22 Respondent’s second contention on appeal is that the trial court erred in denying
his motions to dismiss and in ordering the issuance of tax deeds because petitioner violated section
21-385 of the Code (id.) by extending the period of redemption to August 9, 2019, prior to July
12, 2019, the date the redemption period was scheduled to expire.
¶ 23 As an initial matter, we acknowledge that petitioner argues respondent has forfeited
review of this claim by failing to raise it in the trial court. See Vantage Hospitality Group, Inc. v.
Q Ill Development, LLC, 2016 IL App (4th) 160271, ¶ 49, 71 N.E.3d 1 (“It has long been the law
of the State of Illinois that a party who fails to make an argument in the trial court forfeits the
opportunity to do so on appeal.”). While we agree with petitioner that respondent failed to include
in his written motions to dismiss the specific claim that petitioner violated section 21-385 by
extending the period of redemption before the then-applicable period expired, we note the issue
was nonetheless fully argued by both parties at the hearing on October 11, 2019. Under these
circumstances, we find respondent’s contention was not forfeited. See, e.g., Concord Air, Inc. v.
Malarz, 2015 IL App (2d) 140639, ¶ 26, 49 N.E.3d 26. Even if it were determined respondent had
failed to raise this claim before the trial court, “the forfeiture rule is an admonition to the parties
and not a limitation on the jurisdiction of this court.” Id. ¶ 24.
¶ 24 In support of his present claim, respondent points to the second sentence of section
21-385 of the Code, as quoted above, which provides:
“If prior to the expiration of the period of redemption or extended period of
redemption a petition for tax deed has been filed under Section 22-30, upon
application of the petitioner, the court shall allow the purchaser or his or her
-9-
assignee to extend the period of redemption after expiration of the original period
or any extended period of redemption, provided that any extension allowed will
expire not later than 3 years from the date of sale.” 35 ILCS 200/21-385 (West
2018).
Respondent argues this sentence of the statute prohibits a tax purchaser who has already filed a
petition for tax deed from applying for an extension of the redemption period before the original
period of redemption, or any extension thereof, has already expired. We disagree as respondent’s
interpretation would create a conflict between the first sentence of the statute and that second
sentence, as quoted. The first sentence of section 21-385 clearly allows a tax purchaser to extend
the period of redemption “at any time” before the expiration of the original or any extended period
of redemption. Id. The first sentence does not include any exception limiting its applicability only
to those tax purchasers who have not previously filed a petition for tax deed. Adopting
respondent’s argument would require us to impermissibly find an implied limitation in the statute
contrary to the clear language of the statute. Elam, 2021 IL 127080, ¶ 14. Reading section 21-385
as a whole, it is clear the first sentence and the second sentence, as quoted, are not mutually
exclusive, but instead provide a tax purchaser two different opportunities to extend the redemption
period. The first sentence affords a tax purchaser the opportunity to extend the period of
redemption before the expiration of the then-current redemption period, regardless of whether the
tax purchaser has already filed a petition for tax deed. The second sentence, which is only
applicable where a tax purchaser has filed a petition for tax deed before the redemption period
expired, affords the tax purchaser the opportunity to extend the period of redemption after the
expiration thereof.
¶ 25 Finally, respondent argues the trial court erred in denying his motions to dismiss
- 10 -
and in ordering the issuance of tax deeds because petitioner violated section 21-360 of the Code
(35 ILCS 200/21-360 (West 2018)) by posting additional costs with the county clerk less than 30
days prior to the expiration of the period of redemption. Section 21-360 of the Code sets forth the
conditions under which the county clerk is required to include various sums, as listed in section
21-355 of the Code (id. § 21-355), in the amount a property owner must pay to redeem his property
following a tax sale. Section 21-360 provides, in relevant part, as follows:
“Except as otherwise provided in Section 21-355, the county clerk shall not
be required to include amounts described in paragraphs (c) through (k) of Section
21-355 in the payment for redemption or the amount received for redemption, nor
shall payment thereof be a charge on the property sold for taxes, unless the tax
certificate holder has filed and posted with the county clerk prior to redemption and
in any event not less than 30 days prior to the expiration of the period of redemption
or extended period of redemption an official, original or duplicate receipt for
payment of those fees, costs and expenses permitted under paragraphs (c) through
(k) of Section 21-355.” Id. § 21-360.
According to respondent, petitioner violated this statute by posting costs on July 24, 2019, 17 days
before the expiration of the period of redemption on August 9, 2019. In response, petitioner argues
respondent forfeited review of this contention by failing to include an affidavit in support of the
claim in his motions to dismiss as required under section 2-619 of the Code of Civil Procedure
(735 ILCS 5/2-619 (West 2018)).
¶ 26 Section 2-619 of the Code of Civil Procedure provides that a respondent may,
within the time for pleading, file a motion to dismiss a petition upon any ground listed therein.
Subsection (a)(9), which respondent invoked in his motions to dismiss, provides that a respondent
- 11 -
may move to dismiss on the basis that the claim is barred by “other affirmative matter avoiding
the legal effect of or defeating the claim.” Id. § 2-619(a)(9). Section 2-619 further provides that if
the ground for dismissing the petition, as asserted in the motion to dismiss, “do[es] not appear on
the face of the pleading attacked[,] the motion shall be supported by affidavit.” Id. § 2-619(a). As
petitioner correctly notes, respondent’s assertion that petitioner violated section 21-360 of the
Code was not a ground for dismissal that was apparent from the face of the Petition. Thus,
petitioner argues, because respondent failed to support this assertion with an affidavit and instead
only supported the assertion with an unsigned, handwritten statement contained in one of his
exhibits, respondent has forfeited review of his claim. We disagree. While petitioner is correct that
respondent’s failure to provide the requisite affidavits would ordinarily constitute a fatal
deficiency, petitioner failed to object in the trial court to the absence of supporting affidavits. This
failure by petitioner now requires that we find it has forfeited its forfeiture argument on appeal.
See Cochran v. Securitas Security Services USA, Inc., 2016 IL App (4th) 150791, ¶ 22, 59 N.E.3d
234 (a party’s failure to object to the absence of required affidavits in the trial court will result in
forfeiture of the argument on appeal).
¶ 27 Turning to the merits of respondent’s contention, we note respondent has cited no
caselaw holding that an alleged violation of section 21-360 is sufficient grounds to deny the
issuance of a tax deed. Nor does respondent identify any provision in section 21-360 or elsewhere
in the Code indicating that a violation of that section is sufficient grounds to deny the issuance of
a tax deed. Instead, respondent seems to argue that any violation of the Code by a tax purchaser
prior to the issuance of a tax deed is a sufficient basis to deny the issuance of the deed. This
argument is untenable. Our research indicates that, while the trial court should deny the issuance
of a tax deed, for example, where a tax purchaser fails to strictly comply with the Code’s notice
- 12 -
provisions (see, e.g., In re Application of the County Treasurer & ex officio County Collector,
2013 IL App (1st) 130463, ¶ 15, 3 N.E.3d 431), not every violation of the Code by a tax purchaser
is a sufficient basis to warrant denial of the tax deed (see, e.g., Hoffman v. Stuckslager, 48 Ill. 2d
262, 267, 269 N.E.2d 501, 504 (1971) (finding a tax purchaser’s failure to provide payment of
delinquent taxes purchased at a tax sale “forthwith,” as required by statute, was not a sufficient
ground to deny the issuance of a tax deed)). Moreover, we do not agree with respondent’s assertion
that section 21-360 of the Code prohibits a tax purchaser from posting receipts of payments made
for items listed in section 21-355 within 30 days before the expiration of a redemption period.
Rather, that statute only prohibits the clerk from including those payments as a “charge” on the
property—the statute limits the conduct of the county clerk, not the tax purchaser. Because
respondent did not challenge the clerk’s calculation of the redemption estimate in the trial court,
any argument that the clerk improperly included amounts posted by respondent as a charge on the
property has been forfeited for review. See Vantage Hospitality Group, Inc., 2016 IL App (4th)
160271, ¶ 49.
¶ 28 For the reasons discussed above, petitioner did not violate the Code in its
application for the issuance of tax deeds as alleged by respondent. Therefore, we find the trial court
did not err in denying respondent’s motions to dismiss or in granting the Petition and directing the
county clerk to issue tax deeds for the Respondent’s Properties.
¶ 29 III. CONCLUSION
¶ 30 For the reasons stated, we affirm the trial court’s judgment.
¶ 31 Affirmed.
- 13 -