MADISON TWO ASSOCIATES v. Pappas , 308 Ill. Dec. 981 ( 2007 )

JUSTICE GALLAGHER

delivered the opinion of the court:

This appeal involves the issue of whether the City of Chicago (the City) and the Chicago Board of Education (the Board) (collectively, petitioners), as taxing districts, have a right to intervene in tax objection cases involving valuation disputes, as opposed to rate disputes. Petitioners contend that the disposition of such cases could result in a reduction of tax revenue that they receive and they seek intervention of right pursuant to sections 2 — 408(a)(2) and (a)(3) of the Code of Civil Procedure. 735 ILCS 5/2 — 408(a)(2), (a)(3) (West 2002). The circuit court ruled that the Property Tax Code (35 ILCS 200/1 et seq. (West 2002)) is a complete and comprehensive statute that enumerates all of the parties who are involved and all of their rights, and, because it does not provide for a right of intervention by taxing bodies in tax objection cases, section 2 — 408 of the Code of Civil Procedure did not apply. Petitioners now appeal. We reverse and remand.

BACKGROUND

On August 26, 2003, petitioners jointly filed petitions to intervene in 30 tax objection cases in which certain Cook County property owners sought refunds of property taxes for the 2001 tax year. Thirteen of those cases are now involved in this appeal.¹

In each case involved in this appeal, the owner of the subject property filed a response opposing intervention in the circuit court. Defendant Maria Pappas, Cook County treasurer and ex officio Cook County collector (the Collector), also filed a response. The Collector did not object to intervention, provided that, pursuant to section 2 — 408(f) of the Code of Civil Procedure (735 ILCS 5/2 — 408(0 (West 2002)) and section 23 — 30 of the Property Tax Code (35 ILCS 200/ 23 — 30 (West 2002)), any order granting the City and the Board leave to intervene specify that the State’s Attorney retained the sole authority to control the defensive aspects of the litigation and/or settle any claims.

On February 27, 2004, the circuit court entered an order denying the petitions for leave to intervene. The court also included Supreme Court Rule 304(a) language. 155 Ill. 2d. R. 304(a). On March 25, 2004, the court entered an order consolidating the cases “for purposes of appealing” the February 27, 2004, order denying the petitions to intervene. We reverse and remand.

ANALYSIS

We first address our standard of review. An order denying leave to intervene as of right is generally reviewed for a clear abuse of discretion as to timeliness, inadequacy of representation, and sufficiency of interest. See, e.g., Citicorp Savings v. First Chicago Trust Co., 269 Ill. App. 3d 293, 298 (1995). In the instant case, however, the trial court did not base its decision upon, nor even address, any of these factors. Rather, the trial court denied the petitions to intervene based upon its decision that the Property Tax Code (35 ILCS 200/ 23 — 30 (West 2002)) was a complete and comprehensive statute that enumerates all of the parties who are involved and all of their rights. The trial court concluded that the legislature did not intend to permit taxing bodies to intervene in specific tax objection cases, i.e., cases involving challenges to property assessments (as opposed to rate challenges), because the Property Tax Code does not expressly provide for a right of intervention by taxing bodies in specific tax objection cases. In order to determine whether the trial court applied the correct legal criteria in the exercise of its discretion, we must construe the pertinent statutes. Thus, the issue on appeal involves a question of law and our standard of review is de novo. See People ex rel. Graf v. Village of Lake Bluff, 206 Ill. 2d 541 (2003). We conclude that the circuit court’s interpretation of the relevant statutes was erroneous.

Article II of the Code of Civil Procedure is known as the Civil Practice Law. 735 ILCS 5/1 — 101(b) (West 2002). The legislature has addressed the applicability of the Civil Practice Law in Article I of the Code of Civil Procedure, specifically in section 1 — 108, which provides as follows:

“Civil Practice Law applies, (a) The provisions of Article II of this Act apply to all proceedings covered by Articles III through XIX of this Act except as otherwise provided in each of the Articles III through XIX, respectively.

(b) In proceedings in which the procedure is regulated by statutes other than those contained in this Act, such other statutes control to the extent to which they regulate procedure but Article II of this Act applies to matters of procedure not regulated by such other statutes (Emphasis added.) 735 ILCS 5/1 — 108 (West 2002).

Thus, the Civil Practice Law applies to all proceedings specifically covered in the Code of Civil Procedure, as well as all matters of procedure not regulated by other statutes. Intervention is a matter of procedure not regulated by the Property Tax Code. Thus, in the present case, the Civil Practice Law applies to the matter of procedure, intervention, which is at issue here. See, e.g., Rodriguez v. Sheriff’s Merit Comm’n, 218 Ill. 2d 342, 354, 843 N.E.2d 379, 385 (2006) (“supreme court rules, together with article II of the Code of Civil Procedure, i.e., the Civil Practice Law [citation], apply to all proceedings in the trial court, except to the extent that the procedure in a particular type of action is regulated by a statute other than the Civil Practice Law”); see also In re Petition to Form a New Park District, 247 Ill. App. 3d 702, 708, 617 N.E.2d 464, 468-69 (1993) (noting that “[t]he relevant section of the present Code of Civil Procedure, section 1 — 108, originally appeared as section 1 of the Civil Practice Act” and explaining that, since its revision in 1955, section 1 — 108(b) has expressly dealt with the relationship between the Civil Practice Law and separate statutes that only partially prescribe a special procedure).

Although the Property Tax Code addresses some procedural matters related to tax objection cases, it only partially prescribes procedure. For example, section 23 — 5 specifies that taxes must be paid in full to be deemed paid under protest. 35 ILCS 200/23 — 5 (West 2002). Section 23 — 10 sets forth a deadline by which a property owner must file a tax objection complaint. 35 ILCS 200/23 — 10 (West 2002). Section 23 — 15 sets forth additional procedural details and states as follows:

“§23 — 15. Tax objection procedure and hearing.

(a) A tax objection complaint under Section 23 — 10 shall be filed in the circuit court of the county in which the subject property is located. Joinder of plaintiffs shall be permitted to the same extent permitted by law in any personal action pending in the court and shall be in accordance with Section 2 — 404 of the Code of Civil Procedure; provided, however, that no complaint shall be filed as a class action. The complaint shall name the county collector as defendant and shall specify any objections that the plaintiff may have to the taxes in question. No appearance or answer by the county collector to the tax objection complaint, nor any further pleadings, need be filed. Amendments to the complaint may be made to the same extent which, by law, could be made in any personal action pending in the court.

(b) (1) The court, sitting without a jury, shall hear and determine all objections specified to the taxes, assessments, or levies in question. This Section shall he construed to provide a complete remedy for any claims with respect to those taxes, assessments, or levies, excepting only matters for which an exclusive remedy is provided elsewhere in this Code.

(2) The taxes, assessments, and levies that are the subject of the objection shall be presumed correct and legal, but the presumption is rebuttable. The plaintiff has the burden of proving any contested matter of fact by clear and convincing evidence.

(3) Objections to assessments shall be heard de novo by the court. The court shall grant relief in the cases in which the objector meets the burden of proof under this Section and shows an assessment to be incorrect or illegal. If an objection is made claiming incorrect valuation, the court shall consider the objection without regard to the correctness of any practice, procedure, or method of valuation followed by the assessor, board of appeals, or board of review in making or reviewing the assessment, and without regard to the intent or motivation of any assessing official. The doctrine known as constructive fraud is hereby abolished for purposes of all challenges to taxes, assessments, or levies.

(c) If the court orders a refund of any part of the taxes paid, it shall also order the payment of interest as provided in Section 23— 20. Appeals may be taken from final judgments as in other civil cases.” 35 ILCS 200/23 — 15 (West 2002).

Despite these procedural sections pertaining to tax objection complaints filed in the circuit court, the Property Tax Code is silent as to intervention. Thus, the express language in section 1 — 108(b) controls this case because intervention by taxing districts is a “matter[ ] of procedure not regulated by” the Property Tax Code. 735 ILCS 5/1— 108(b) (West 2002). In section 1 — 108(b), the legislature clearly recognized that, apart from the Code of Civil Procedure, there are other statutes, such as the Property Tax Code, that regulate procedure. But, as the legislature explicitly stated, such other statutes control only “to the extent which they regulate procedure.” Thus, while the Property Tax Code does regulate procedure to some extent, it is a statute that only partially prescribes a special procedure and, consistent with section 1 — 108(b)’s express limiting language of “to the extent to which they regulate procedure,” the Civil Practice Law applies to those matters of procedure, including intervention, that are not regulated by the Property Tax Code.

The objectors contend, however, that because section 23 — 15 expressly adopts portions of Article II of the Code of Civil Procedure related to joinder of plaintiffs and amendment of complaints, the absence of language expressly authorizing intervention should constitute a prohibition of intervention. We agree with petitioners that such an interpretation is inconsistent with the plain terms of section 1 — 108(b) of the Code of Civil Procedure. 735 ILCS 5/1 — 108 (West 2002). Moreover, as petitioners note, such an interpretation would also mean that a host of provisions in Article II of the Code of Civil Procedure that are routinely utilized in tax objection cases are also inapplicable. These provisions include, among others, the procedures governing motions to dismiss a complaint, pretrial discovery, summary judgment, extensions of time and continuances, the substitution of parties, voluntary dismissal of cases, the entry of judgment, and post-judgment motions.

This court has noted that section 1 — 108(b) has been applied in various contexts. See In re Petition to Form a New Park District, 247 Ill. App. 3d 702, 706, 617 N.E.2d 464, 467 (1993) (and cases cited therein); see also In re Application of the County Collector for Judgment & Order of Sale Against Lands & Lots Returned Delinquent for Nonpayment of General Taxes for the Year 1985 & Prior Years, 211 Ill. App. 3d 988, 996, 570 N.E.2d 769, 774 (1991) (allowing summary judgment procedure in a tax deed case because “[t]o the extent that the Revenue Act does not regulate matters of procedure, the Civil Practice Act applies”). Notably, the Illinois Supreme Court has applied section 1 — 108(b) where the Illinois Municipal Code (formerly Ill. Rev. Stat. 1985, ch. 24, par. 7 — 1—2) was silent on the issue of vacating a final order approving a village’s annexation ordinance. In re Petition of the Village of Kildeer to Annex Certain Territory, 124 Ill. 2d 533, 543, 530 N.E.2d 491 (1988). In the instant case, pursuant to section 1 — 108(b), the Civil Practice Law applies, including section 2 — 408 dealing with intervention.

We note that our decision is consistent with ABN Ambro Services Co. v. Naperville Park District, 325 Ill. App. 3d 7, 10, 756 N.E.2d 445, 448 (2001).

As the ABN Ambro court explained:

“Objectors also contend that the intervention provision of section 2 — 408(a) of the Civil Code does not apply to tax objection cases. We disagree. To the extent that the Tax Code does not regulate matters of procedure, the Civil Code applies. See People ex rel. Southfield Apartment Co. v. Jarecki, 408 Ill. 266, 274[, 96 N.E.2d 569] (1951) (‘where the Revenue Act [the statute that formerly contained the relevant provisions of the Tax Code] is silent, *** the Civil Practice Act and rules of court apply’); In re Application of the Cook County Collector for Judgment & Order of Sale Against Lands & Lots Returned Delinquent for Nonpayment of General Taxes for the Year 1987 & Prior Years, 271 Ill. App. 3d 12, 16[, 648 N.E.2d 153] (1995) (‘To the extent that the Revenue Act does not regulate matters of procedure, the Code of Civil Procedure applies’); In re Application of Rosewell, 236 Ill. App. 3d 165[, 168-69, 603 N.E.2d 681] (1992)[(same)]. *** While the Tax Code contains a section relating to procedures for and adjudication of tax objections [citation], objectors do not cite, and we have been unable to locate, any provision in the Tax Code in which intervention is regulated. Accordingly, we find that the Civil Code’s intervention provision applies to proceedings under the Tax Code.” ABN Ambro Services Co. v. Naperville Park District, 325 Ill. App. 3d 7, 10, 756 N.E.2d 445, 448 (2001).

The trial court in the instant case concluded that ABN Ambro was inapplicable because that case involved a tax rate objection, while the present case involves assessed valuation objections. We believe that this is a distinction without a difference. There is one Property Tax Code. We conclude that ABN Ambro was correctly decided and was dispositive in the instant case. Section 2 — 408 in Article II of the Code of Civil Procedure is applicable, and the trial court here should have construed section 2 — 408 to determine whether petitioners satisfied its requirements for intervention.

On appeal, petitioners now assert that this court should rule, as a matter of law, that section 2 — 408(a)(3) in Article II of the Code of Civil Procedure (735 ILCS 5/2 — 408(a)(3) (West 2002)) applies and should direct the trial court to grant petitioners leave to intervene. We decline to do so and remand this matter to the trial court with directions to hold a hearing to consider whether petitioners have satisfied the requirements for intervention under section 2 — 408(a)(2) or section 2 — 408(a)(3) in Article II of the Code of Civil Procedure.

Reversed and remanded.

TULLY, J., concurs.

1 Seven cases were dismissed by the circuit court and there originally were 23 cases involved in this appeal. After this appeal was filed, several of these cases, bearing docket numbers 02 CT 2211, 03 COTO 0330, 03 COTO 0340, 03 COTO 0342, 03 COTO 1104, 03 COTO 1453, 03 COTO 1459, 03 COTO 1479, 03 COTO 1943, and 03 COTO 1944, were resolved and/or dismissed.