Dumas v. Pappas

2014 IL App (1st) 121966SIXTH DIVISION
February 7, 2014
No. 1-12-1966
BETTY J. DUMAS and JEROME CASIMIR, ) Appeal from the
) Circuit Court of
Plaintiffs-Appellants, ) Cook County.
)
v. ) No. 12 CH 2120
)
MARIA PAPPAS, Cook County Treasurer and )
ex officio County Collector, DAVID ORR, ) Honorable
Cook County Clerk, and JOSEPH BERRIOS, ) Michael B. Hyman,
Cook County Assessor, ) Judge Presiding.
)
Defendants-Appellees. )
JUSTICE HALL delivered the judgment of the court, with opinion.
Presiding Justice Rochford and Justice Lampkin concurred in the judgment and opinion.
OPINION
¶1 The pro se plaintiffs, Betty J. Dumas and Jerome J. Casimir, appeal from an order of the
circuit court of Cook County dismissing their petition for a writ of mandamus and for a
declaratory judgment against the defendants, Maria Pappas, Cook County treasurer, David Orr,
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Cook County clerk, and Joseph Berrios, Cook County assessor. On appeal, the plaintiffs contend
that the circuit court erred in dismissing the petition and that they should have been allowed to
amend the petition. For the reasons set forth below, we affirm the judgment of the circuit court.
¶2 On January 20, 2012, the plaintiffs filed a pro se petition seeking a writ of mandamus
ordering defendant Orr to recompute the plaintiffs' property tax bills for the years 2007 through
2011 and for a judgment declaring that the overassessment of their real property was unlawful
since it was based on an improper method of valuation, erroneous billings and lack of notice of
the sale of the property. In support of the petition, the plaintiffs alleged that in January 2007,
they were the owners of real property located at 3620 South Calumet Avenue, Chicago. In 2007,
a fire destroyed the structure on the property, and the property was vacant for the remainder of
2007 and 2008.
¶3 The plaintiffs alleged that errors occurred in the assessment of their property based on the
following facts:
A. For the 2007 tax year, the property had an assessed value of $5,706, an
equalized value of $5,706 and was subject to $783.61in real estate taxes.
B. For the 2008 tax year, the now-vacant property had an assessed value of
$28,037 and was subject to $3,116.68 in real estate taxes.
C. For the 2009 tax year, the property had an assessed value of $3,360, an
equalized value of $3,360 and was subject to $2,295.27 in real estate taxes.
D. For the 2010 tax year, the property had an assessed valuation of $3,360, an
equalized value of $3,360 and was subject to $546.75 in real estate taxes.
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¶4 The plaintiffs alleged they paid the 2003 through 2006 real estate taxes. They believed
they paid the 2007 taxes and owed no outstanding taxes. On February 24, 2009, the plaintiffs
paid the first installment of their property tax in the amount of $391.81. They denied receiving a
tax bill for 2007or a notice of unpaid taxes. They also denied receiving the statutory notices of a
tax sale for the years 2006 and 2007 or that a petition for a tax deed had been filed. They further
alleged that on January 13, 2011, they contested the erroneous assessments for the years 2007
through 2009, by filing an application for a certificate of error with the county assessor. They
never received a decision from the assessor or a response to their application.
¶5 The defendants filed a motion to dismiss the petition pursuant to section 2-619.1 of the
Code of Civil Procedure (735 ILCS 5/2-619.1 (West 2010) (the Code) (a combined motion under
sections 2-615 and 2-619 of the Code)). The defendants sought dismissal of the petition under
section 2-615 of the Code based on the plaintiffs' failure to state a cause of action for mandamus.
They also sought dismissal under section 2-619 of the Code based on the lack of subject matter
jurisdiction.
¶6 In granting the motion to dismiss, the circuit court determined that the petition failed to set
forth sufficient facts to support the plaintiffs' cause of action for the issuance of a writ of
mandamus. The court further found that the failure of the plaintiffs to file a tax objection
complaint prevented the court from hearing the claim. The court dismissed the petition with
prejudice. The plaintiffs appeal.
¶7 ANALYSIS
¶8 The plaintiffs contend that their petition stated a cause of action for mandamus based on
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their allegation that assessor Berrios failed in his duty to act on their application for a certificate
of error. The plaintiffs further contend that it was error to dismiss the petition with prejudice
without allowing them an opportunity to file an amended petition.
¶9 I. Dismissal of the Petition
¶ 10 A. Standard of Review
¶ 11 This court reviews the dismissal of a complaint pursuant to sections 2-615 and 2-619 de
novo. See R&B Kapital Development, LLC v. North Shore Community Bank & Trust Co., 358
Ill. App. 3d 912 (2005) (section 2-615 dismissal); Schrager v. Bailey, 2012 IL App (1st) 111943(section 2-619 dismissal).
¶ 12 In reviewing an order dismissing a complaint for failure to state a cause of action, the
court accepts as true all well-pleaded facts and all reasonable references that may be drawn from
those facts. Marshall v. Burger King Corp., 222 Ill. 2d 422, 429 (2006). The allegations in the
complaint are construed in the light most favorable to the plaintiff, and the complaint should be
dismissed only where no set of facts can be proved entitling the plaintiff to recovery. Marshall,
222 Ill. 2d at 429. A plaintiff must allege sufficient facts, not simply conclusions, to bring a
claim within a legally recognizable cause of action. Marshall, 222 Ill. 2d at 429-30.
¶ 13 B. Discussion
¶ 14 In support of their claim for a writ of mandamus, the plaintiffs alleged that assessor
Berrios refused and failed to respond to their January 13, 2011, certificate of error application.
The procedure governing the issuance of certificates of error is set forth in section 14-15 of the
Property Tax Code. 35 ILCS 200/14-15 (West 2010). Section 14-15 provides in pertinent part
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as follows:
"[I]f *** the county assessor discovers an error or mistake in the assessment, the assessor
shall execute a certificate setting forth the nature and cause of the error. The certificate
when endorsed by the county assessor, or when endorsed by the county assessor and
board of appeals *** where the certificate is executed for any assessment which was the
subject of a complaint filed in the board of appeals ***, may, either be certified according
to the procedure authorized by this Section or be presented and received in evidence in
any court of competent jurisdiction. Certification is authorized, at the discretion of the
county assessor, for: (1) certificates of error allowing homestead exemptions ***; (2)
certificates of error on residential property of 6 units or less; (3) certificates of error
allowing exemption of [tax exempt] property ***; and (4) other certificates of error
reducing assessed value by less than $100,000. Any certificate of error not certified shall
be presented to the court. The county assessor shall develop reasonable procedures for
the filing and processing of certificates of error." 35 ILCS 200/14-15(a) (West 2010).
¶ 15 Where a public official has failed or refused to comply with requirements imposed by
statute, the court may compel the official to comply with the statutory requirement by means of a
writ of mandamus, provided the requirements for the writ have been satisfied. Noyola v. Board
of Education of the City of Chicago, 179 Ill. 2d 121, 132 (1997). Although an extraordinary
remedy, mandamus proceedings are governed by the pleading rules applicable to actions at law.
Noyola, 179 Ill. 2d at 133. A plaintiff seeking a writ of mandamus must "demonstrate a clear,
affirmative right to relief, a clear duty of the defendant to act, and clear authority in the defendant
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to comply with the writ." Givot v. Orr, 321 Ill. App. 3d 78, 90 (2001). However, mandamus
cannot be used to compel a public official to perform an act which requires the exercise of his
discretion. Hadley v. Ryan, 345 Ill. App. 3d 297, 301-02 (2003) (mandamus could not be used to
compel the Attorney General to prosecute a claim; by statute, the decision to prosecute was
within his discretion).
¶ 16 In Illinois, a taxpayer has neither a statutory nor constitutional right to participate in a
certificate of error procedure. Ball v. County of Cook, 385 Ill. App. 3d 103, 105 (2008); see
Chicago Sheraton Corp. v. Zaban, 71 Ill. 2d 85, 91 (1978) (legislature intended the certificate of
error procedure to be an expeditious summary process without the participation by the taxpayer
for correcting the assessor's errors). Moreover, section 14-15 gives the assessor discretion to
execute a certificate of error in certain instances, such as where the residential property is six
units or less or where the assessed valuation would be reduced by less than $100,000. 35 ILCS
200/14-15(a) (West 2010). Based on the allegations in and the exhibits to the petition, the
plaintiffs' property was less than six units and the assessed valuation would be reduced by less
than $100,000. Since the assessor's duty was discretionary, the plaintiffs failed to state a cause of
action for the issuance of a writ of mandamus.
¶ 17 In any event, the plaintiffs cannot prevail on their request for mandamus or a declaratory
judgment because the circuit court lacked subject matter jurisdiction to grant such relief. Our
supreme court has recognized that the Property Tax Code is a comprehensive statute regulating
the assessment and collection of taxes. Millennium Park Joint Venture, LCC v. Houlihan, 241
Ill. 2d 281, 295 (2010). Prior to seeking relief in the circuit court for an incorrect assessment, a
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taxpayer must first exhaust his administrative remedies provided by the statute, beginning with
the board of review. Millennium Park Joint Venture, LCC, 241 Ill. 2d at 295. "[T]he Board of
Review may revise or correct an assessment as appears to be just on complaint by a taxpayer that
'any property is overassessed, underassessed, or exempt.' " Millennium Park Joint Venture, LCC,
241 Ill. 2d at 296 (quoting 35 ILCS 200/16-95 (West 2008), citing 35 ILCS 200/16-120 (West
2008)). The taxpayer then may either appeal to the Property Tax Appeal Board or file a tax
objection complaint in the circuit court specifying the objections to the tax. Millennium Park
Joint Venture, LCC, 241 Ill. 2d at 296; 35 ILCS 200/16-160, 23-15 (West 2010). "[T]he
adequate remedy at law is to pay the taxes under protest and file a statutory objection."
Millennium Park Joint Venture, LCC, 241 Ill. 2d at 296. Only where the tax is unauthorized by
law or where it is levied on tax-exempt property may the taxpayer bypass the statutory remedy
and seek injunctive or declaratory relief in the circuit court. Millennium Park Joint Venture,
LCC, 241 Ill. 2d at 296.
¶ 18 In this case, the plaintiffs failed to allege that their property was tax exempt or that the
real estate tax on their property was unauthorized by law. They did allege that the assessment
was illegal and unlawful. However, "a true 'unauthorized by law' challenge arises where the
taxing body has no statutory power to tax in a certain area or has been given no jurisdiction to tax
a certain subject, as opposed to a complaint that merely alleges procedural errors or irregularities
in the taxing process, in which case equity relief would not be available." Millennium Park Joint
Venture, LCC, 241 Ill. 2d at 307.
¶ 19 The plaintiffs failed to allege that they exhausted their administrative remedies prior to
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filing their petition or that their property was tax exempt. The allegations in the petition did not
establish that the tax was unauthorized by law. Therefore, the circuit court lacked subject matter
jurisdiction to grant them mandamus relief or grant them the declaratory judgment they
requested. Compare Millennium Park Joint Venture, LCC, 241 Ill. 2d at 308 (where the tax
assessment was "unauthorized by law," the circuit court had subject matter jurisdiction to rule on
the merits of the suit for declaratory and injunctive relief). In the absence of subject matter
jurisdiction, dismissal of the petition was proper.
¶ 20 II. Dismissal With Prejudice Without Leave to Amend
¶ 21 The plaintiffs contend that the circuit court erred in dismissing their petition with
prejudice. Relying on section 14-109 of the Code, they argue that seeking the wrong remedy was
not fatal to their cause of action and that they should have been allowed to amend their
complaint. The defendants point out that the plaintiffs did not file a motion seeking leave to
amend. Issues not raised in the trial court are forfeited and may not be raised for the first time on
appeal. In re Marriage of Romano, 2012 IL App (2d) 091339, ¶ 85. Even if we were to consider
the issue, no error occurred.
¶ 22 Section 14-109 provides in pertinent part as follows:
"Where [mandamus] relief is sought *** and the court determines, on motion directed to
the pleadings, or on motion for summary judgment or upon trial, that the plaintiff has
pleaded or established facts which entitle the plaintiff to relief but that the plaintiff has
sought the wrong remedy, the court shall permit the pleadings to be amended, on just and
reasonable terms, and the court shall grant the relief to which the plaintiff is entitled on
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the amended pleadings or upon the evidence." 735 ILCS 5/14-109 (West 2010).
¶ 23 The plaintiffs' reliance on section 14-109 is misplaced. Section 14-109 gives a plaintiff
the right to amend where he has alleged sufficient facts but sought the wrong remedy. In this
case, the circuit court determined that the plaintiffs failed to allege sufficient facts to support
their right to relief. Therefore, the plaintiffs were not entitled to amend their petition under
section 14-109.
¶ 24 Moreover, filing an amended pleading would not cure the defect in the original petition.
Since the plaintiffs could allege no additional facts establishing subject matter jurisdiction, the
circuit court did not err in dismissing the petition with prejudice without leave to amend. See
Hadley, 345 Ill. App. 3d at 303-04 (denial of leave to file an amended complaint was not an
abuse of discretion where the amended complaint would not have cured the defects in the
original complaint).
¶ 25 CONCLUSION
¶ 26 The dismissal of the plaintiffs' petition for writ of mandamus and declaratory judgment
was proper for the reasons stated above. The dismissal of the petition with prejudice and without
leave to amend was not error.
¶ 27 The judgment of the circuit court is affirmed.
¶ 28 Affirmed.
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