In re: The Application of the Douglas County Treasurer

FILED
2014 IL App (4th) 130261 January 27, 2014
Carla Bender
NO. 4-13-0261 4th District Appellate
Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: The Application of the Douglas County Treasurer ) Appeal from
and Ex Officio County Collector of Douglas County, ) Circuit Court of
Illinois, for Order of Judgment and Sale Against Real ) Douglas County
Estate Returned Delinquent for the Nonpayment of ) No. 07TX1-17
General Taxes for the Year 2006, )
DENNIS D. BALLINGER, )
Petitioner-Appellant, )
v. )
DOUGLAS A. MOORE and RICHARD W. MOORE, )
Not Individually But as Coexecutors of the Estate of )
JOAN J. COOK, Deceased; CLIFFORD M. JONES; and ) Honorable
NANCY H. JONES, ) Michael G. Carroll,
Respondents-Appellees. ) Judge Presiding.
____________________________________________________________________________
JUSTICE KNECHT delivered the judgment of the court, with opinion.
Justices Pope and Steigmann concurred in the judgment and opinion.
OPINION
¶1 In January 2008, petitioner, Dennis D. Ballinger, purchased the taxes due for tax
year 2006 on a 40-acre parcel of farmland in Douglas County (permanent index No. 02-07-24-
200-002) (hereinafter the property). In 2010, Ballinger acquired a tax deed for the property. In
September 2011, respondents Douglas A. Moore, Richard W. Moore (both as coexecutors of the
estate of Joan J. Cook), Clifford M. Jones, and Nancy H. Jones filed a petition for relief from
judgment pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401
(West 2010)), alleging Ballinger failed to provide proper notice and requesting the tax deed be
set aside. In March 2013, the trial court granted respondents' motion for summary judgment and
set aside the tax deed.
¶2 Ballinger appeals, arguing the trial court erred in granting respondents' summary
judgment motion because (1) Nancy does not have a "recorded" ownership interest in the
property to be entitled to relief pursuant to section 22-45(4) of the Property Tax Code (35 ILCS
200/22-45(4) (West 2010)), and (2) issues of material fact remain whether Ballinger conducted a
diligent inquiry to locate Nancy. We disagree and affirm.
¶3 I. BACKGROUND
¶4 A. Background to the Property
¶5 A brief background to the property and respondents' familial relationship is
necessary to understand the parties' arguments. (See Appendix A.) Gertrude Jones owned the
property at the time of her death in May 1946. At the time of her death, Gertrude had two living
children, Theodore Jones and Melville Jones. Nancy is Melville's daughter. Gertrude's third
son, George Jones, predeceased her in 1945. George was survived by his wife, Cecily Jones
(later Cecily B. Cline), and children, Joan, William and a third child who is not relevant to this
appeal. In her will, Gertrude devised the property to Cecily, for life, with the remainder to her
grandchildren. Cecily died in January 1984. William's son, Clifford, obtained his interest in the
property in 1990. Joan died in April 2011, and was survived by her children, Douglas and
Richard Moore. To summarize, Joan, William, and Nancy are Gertrude's grandchildren, and
Clifford, Douglas, and Richard are Gertrude's great-grandsons.
¶6 Joan lived in Charlotte, North Carolina; Nancy has lived in Taylorville, Illinois,
for 35 years; and Clifford has lived in Champaign, Illinois, for 6 years.
¶7 B. The Initial Proceedings
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¶8 In January 2008, Ballinger purchased the property's taxes due for tax year 2006.
In June 2010, Ballinger filed a petition requesting the trial court to issue a tax deed, stating the
redemption period would expire on December 9, 2010. He submitted a "Take Notice" to the
Douglas County clerk for certified mailing to (1) the Douglas County clerk, (2) Clifford (with a
Bristol, Wisconsin, mailing address), (3) William, (4) the Internal Revenue Service, (5) the
United States Attorney General, (6) the United States District Attorney, and (7) "Joan Jones
Moore" (with a Charlotte, North Carolina, mailing address). The return receipts for the
governmental entities and William were returned as delivered. The return receipt for Clifford
was returned as "Returned to Sender/Attempted/Not Known." The return receipt for "Joan Jones
Moore" was returned as "Returned to Sender/Unclaimed/Unable To Forward." We note
Ballinger attached a 2009 federal tax lien for Clifford with a Tuscola, Illinois, mailing address.
Ballinger published the "Take Notice" in the Tuscola Journal between August 11, 2010, and
August 25, 2010.
¶9 On December 30, 2010, Ballinger requested the trial court to issue a tax deed for
the property. By affidavit, Ballinger stated the property's owners were the "Cecily B. Cline
Estate," Clifford, William, and "Joan Jones Moore." He also stated, upon diligent inquiry of
"pertinent documents on file" in the Douglas County court clerk's office he could not locate
addresses for the "Cecily B. Cline Estate Heirs, Devisees & Legatees." The same day, the trial
court ordered issuance of the tax deed. Ballinger recorded the deed on June 24, 2011.
¶ 10 C. The Instant Proceedings
¶ 11 On September 19, 2011, respondents filed a petition for relief from judgment
pursuant to section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2010)). Respondents alleged
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they were owners of record of the property and did not receive notice of the tax deed
proceedings. All four respondents attached an affidavit stating they did not receive notice of the
tax deed proceedings.
¶ 12 In November 2011, Ballinger filed a motion to dismiss respondents' petition.
Ballinger asserted he reviewed the records in the Douglas County recorder's office in June 2010,
and at the time of his search respondents "did not have any interest whatsoever in the subject
property." He argued (1) "the law imposes upon [him] the duty to only conduct one search of the
records in the Recorder's Office," and (2) the Moores did not have an interest because they
acquired their interest through Joan, who died in April 2011. He added (1) Nancy was a
remainderman under Gertrude's will, but "[she] had no recorded interest in the subject property at
the time [he] conducted a search of the records in the Recorder's Office" because she was not
named in the will; and (2) the publication notice "cures any defect that may exist in not providing
notice if the individual['s] identity *** [is] unable to be ascertained by the certificate holder."
¶ 13 In February 2012, respondents filed a memorandum in opposition to Ballinger's
motion to dismiss. Respondents asserted counsel performed "an independent title search" of the
Douglas County recorder of deeds', circuit clerk's, treasurer's, and supervisor of assessments'
offices. Based on counsel's search, respondents contended someone examining Gertrude's will
and the property's ownership should have determined whether Melville had any children. This
would have led to Nancy. They added Nancy could be discovered through another deed
covering other property devised in Gertrude's will.
¶ 14 In February 2012, the trial court denied Ballinger's motion to dismiss. In its
detailed, five-page order, the court ruled Ballinger admitted Nancy was Gertrude's grandchild. It
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rejected Ballinger's contention Nancy did not have an ownership interest because her interest
vested when the life estate terminated in 1984. It added "it is obvious that there was no due
diligence" by Ballinger in locating owners as the record showed notice was sent to someone who
was not an owner, William, and no notice was sent to someone who was actually an owner.
¶ 15 In November 2012, respondents filed a motion for summary judgment pursuant to
section 2-1005 of the Code (735 ILCS 5/2-1005 (West 2012)). Respondents attached affidavits
from William, Clifford, and Nancy. William's affidavit stated (1) he had no ownership interest
in the property but the tax bills were sent to him "as a matter of convenience," (2) he requested
the tax bills on the property be sent to Joan "several years ago," (3) Ballinger did not contact him
about ownership of the property, and (4) Clifford had farmed the property for approximately 15
years. Clifford's affidavit stated he was farming the property. Nancy's affidavit stated she had
not received notice or correspondence regarding the tax deed proceedings.
¶ 16 In February 2013, Ballinger filed a cross-motion for summary judgment.
Ballinger asserted (1) "Nancy H. Jones had no recorded interest in the subject property at the
time [he] conducted a search of the records in the Recorder's Office," (2) "Nancy Jones was ***
a remainderman under a life estate that had been created by the will of Gertrude W. Jones," (3)
"[i]t is a crucial point that none of the names of the grandchildren were listed in the will of
Gertrude Jones," and (4) he was not required to serve notice "on an individual who was not
specifically named in the will of Gertrude W. Jones." Ballinger did not attach an affidavit in
support of his motion.
¶ 17 D. The Trial Court's Order
¶ 18 On March 8, 2013, the trial court issued its written order. The court held
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respondents were entitled to relief under section 22-45(4) of the Property Tax Code (35 ILCS
200/22-45(4) (West 2010)). It rejected Ballinger's "narrow, literalist interpretation" of a recorded
interest and concluded Nancy's interest was known and able to be determined as of January 3,
1984, the date the life estate holder died. The court held Ballinger did not make a diligent
inquiry and effort to serve Nancy. It concluded Ballinger did not (1) make any effort to
determine who farmed the land and ask the farmer who owned the land, or (2) contact William to
determine who owned the land despite the notices for Joan and Clifford being returned as
undeliverable. It noted Ballinger's search was "de minimis" as it showed a failure to search the
probate records and determine who had an interest in the property based on those records.
¶ 19 This appeal followed.
¶ 20 II. ANALYSIS
¶ 21 Ballinger appeals, arguing the trial court erred in granting respondents' summary
judgment motion because (1) Nancy did not have a "recorded" ownership interest in the property
to be entitled to relief pursuant to section 22-45(4) of the Property Tax Code (35 ILCS 200/22-
45(4) (West 2010)), and (2) issues of material fact remain whether he conducted a diligent
inquiry to locate Nancy. We address Ballinger's arguments in turn.
¶ 22 A. Standard of Review
¶ 23 A grant of summary judgment is only appropriate when the pleadings,
depositions, admissions, and affidavits demonstrate no genuine issue of material exists and the
movant is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2012). "When
parties file cross-motions for summary judgment, they agree that only a question of law is
involved and invite the court to decide the issues based on the record." Pielet v. Pielet, 2012 IL
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112064, ¶ 28, 978 N.E.2d 1000. "However, the mere filing of cross-motions for summary
judgment does not establish that there is no issue of material fact" and the court must determine
if a question of fact exists. Id. We review de novo a trial court's grant of summary judgment.
City of Decatur, Illinois v. Ballinger, 2013 IL App (4th) 120456, ¶ 21, 988 N.E.2d 737.
¶ 24 Ballinger's appeal raises issues of statutory interpretation of section 22-45(4) of
the Property Tax Code. We review issues of statutory interpretation de novo. Pielet, 2012 IL
112064, ¶ 30, 978 N.E.2d 1000.
¶ 25 B. Section 22-45 of the Property Tax Code
¶ 26 Section 22-45 of the Property Tax Code provides section 2-1401 petitions are
permitted to collaterally attack tax deeds. 35 ILCS 200/22-45 (West 2010). The grounds for
relief are limited to the following:
"(1) proof that the taxes were paid prior to sale;
(2) proof that the property was exempt from taxation;
(3) proof by clear and convincing evidence that the tax
deed had been procured by fraud or deception by the tax purchaser
or his or her assignee; or
(4) proof by a person or party holding a recorded ownership
or other recorded interest in the property that he or she was not
named as a party in the publication notice as set forth in Section
22-20, and that the tax purchaser or his or her assignee did not
make a diligent inquiry and effort to serve that person or party with
the notices required by Sections 22-10 through 22-30." 35 ILCS
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200/22-45 (West 2010).
¶ 27 C. Ballinger's Claim Nancy Did Not Have a Recorded Ownership Interest
¶ 28 Ballinger does not contest Nancy has an ownership interest in the property.
Rather, he asserts the trial court incorrectly interpreted section 22-45(4) of the Property Tax
Code to conclude she has a "recorded interest." Ballinger asserts "recorded" should be
understood according to its "specialized meaning" within the "real estate tax world." Without
legal citation (see Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013) (argument must contain citation to
legal authority)), Ballinger contends the legislature's use of "recorded interest" means interests
"found in the public records kept in the office that Record's [sic] deed, mortgages, and other such
ownership." He adds "[t]he legislature did not use language such as [']filed interest, known
interest, or unknown interest,['] all of which would all have been more broad [sic] and instituted
a necessary process that each potential tax purchaser would have to undertake." He concludes
since Nancy did not have an interest recorded in the recorder of deeds' office she cannot
challenge the tax deed. He also argues Nancy does not have a recorded interest because
Gertrude's will did not include Nancy's name. Ballinger's arguments are unpersuasive.
¶ 29 1. What Is a "Recorded" Ownership Interest?
¶ 30 The fundamental rule of statutory interpretation is to ascertain and give effect to
the legislature's intent. General Motors Corp. v. Pappas, 242 Ill. 2d 163, 180, 950 N.E.2d 1136,
1146 (2011). "The best indication of legislative intent is the statutory language, given its plain
and ordinary meaning." Id. A statutory provision should be evaluated as a whole, with each
provision construed in connection with other sections. Id. "Although a court should first
consider the statutory language, a court must presume that the legislature, in enacting a statute,
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did not intend absurdity or injustice." Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 64, 809
N.E.2d 1248, 1268 (2004).
¶ 31 Before addressing the statutory language, we note the primary purpose of the
Property Tax Code's tax sale provisions is to encourage property owners to pay their taxes, not to
assist tax deed petitioners in depriving actual owners of the property. In re Application of the
County Treasurer, 347 Ill. App. 3d 769, 777, 807 N.E.2d 1042, 1051 (2004) (hereinafter
HomeSide); In re Application of the County Treasurer & ex officio County Collector, 394 Ill.
App. 3d 111, 118-19, 914 N.E.2d 1158, 1165 (2009) (A.P. Properties, appellant). We read
section 22-45(4) of the Property Tax Code with this purpose in mind.
¶ 32 The Property Tax Code does not define the phrase "recorded ownership or other
recorded interest," the word "recorded," or specify where such ownership interest must be
recorded. The First District has interpreted "recorded interest" in section 22-45(4) to mean an
interest which can be inferred from public records. HomeSide, 347 Ill. App. 3d at 778, 807
N.E.2d at 1051; In re Application of the County Collector, 397 Ill. App. 3d 535, 545, 921
N.E.2d 462, 472 (2009) (Devon Bank, appellant); In re Application of County Treasurer & ex
officio County Collector, 2011 IL App (1st) 101966, ¶ 51, 955 N.E.2d 669 (hereinafter Glohry);
see also In re Application of Ward, 311 Ill. App. 3d 314, 320, 724 N.E.2d 1, 5 (1999) (hereinafter
Diedrich). We agree.
¶ 33 Ballinger asserts "recorded" should be understood according to its "specialized
meaning within its common use in the real estate tax world." He is incorrect. Statutory language
must be given its plain and ordinary meaning. Metropolitan Life Insurance Co. v. Hamer, 2013
IL 114234, ¶ 18, 990 N.E.2d 1144. Where a statutory term is undefined "[i]t is appropriate to
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employ a dictionary to ascertain the meaning of an otherwise undefined word or phrase." Id.
¶ 20, 990 N.E.2d 1144. "Record" is defined as "to make or have made an authentic official copy
of (as a deed, mortgage, lease) and deposit or have deposited esp. as in an office designated by
law" and "an authentic official copy of a document entered in a book or deposited in the keeping
of some officer designated by law." Webster's Third New International Dictionary 1898 (1976).
These definitions support a broad concept of something being "recorded" in various
governmental offices, not solely the recorder of deeds' office. Black's Law Dictionary defines
"record" as "[i]nformation that is inscribed on a tangible medium or that, having been stored in
an electronic or other medium, is retrievable in perceivable form." Black's Law Dictionary 1301
(8th ed. 2004). Black's also defines "record owner" as "[a] property owner in whose name the
title appears in the public records." Id. at 1138; see also id. at 1301 (defining "public record" as
"[a] record that a governmental unit is required by law to keep, such as land deeds kept at a
county courthouse"). Black's definition of "record" encompasses the notion something can be
recorded in more than a physical copy stored at a governmental building and encompasses the
modern trend where records are digitized, electronically stored, and able to be retrieved across
various mediums. These definitions do not support Ballinger's assertion something can only be
"recorded" in the recorder of deeds' office. Rather, these definitions support a broader concept of
documents being "recorded" in the public record and in various offices and forms. Interestingly,
our research shows older Illinois cases consistently refer to a will as being "recorded" in the
probate court. See Ayres v. Clinefelter, 20 Ill. 465, 468 (1858); Stull v. Veatch, 236 Ill. 207, 209,
86 N.E. 227, 228 (1908); Barnett v. Barnett, 284 Ill. 580, 587, 120 N.E. 532, 535 (1918); Cobb v.
Willrett, 313 Ill. 92, 97, 144 N.E. 834, 836 (1924); Clark v. Leavitt, 335 Ill. 184, 188-89, 166
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N.E. 538, 540 (1929); Allwood v. Cahill, 382 Ill. 511, 515, 47 N.E.2d 698, 701 (1943). This
historical use of "recorded" directly refutes Ballinger's contention a document is "recorded" only
in the recorder's office. With these definitions and historical usage in mind, we turn to whether
the Property Tax Code supports defining "recorded" as an interest inferred from the public
record.
¶ 34 Ballinger's argument focuses on the first clause of section 22-45(4) but seemingly
ignores the section's references to the Property Tax Code's notice provisions. His interpretation
is problematic when section 22-45(4) is read in conjunction with these notice requirements. The
first clause of section 22-45(4) refers to section 22-20 of the Property Tax Code. 35 ILCS
200/22-45(4) (West 2010). Section 22-20 requires a tax purchaser to conduct a "diligent
inquiry" to determine the owners and parties interested in the property before providing
publication notice to "unknown owners or parties interested." 35 ILCS 200/22-20 (West 2010).
As discussed further below, a "diligent inquiry" is an inquiry "as full as the circumstances of the
situation will permit." Liepelt v. Baird, 17 Ill. 2d 428, 432-33, 161 N.E.2d 854, 858 (1959). The
second clause of section 22-45(4) also uses this "diligent inquiry" language. 35 ILCS 200/22-
45(4) (West 2010). Thus, section 22-45(4) contains two references to a standard requiring a
broad inquiry to locate interested parties and provide them with notice. Ballinger's interpretation
is even more problematic when the issue of who is required to receive notice is considered.
Section 22-10 of the Property Tax Code requires tax purchasers to provide notice of the tax sale
proceedings to "the owners, occupants, and parties interested in the property, including any
mortgagee of record." 35 ILCS 200/22-10 (West 2010). It is well established a tax purchaser
must strictly comply with the statutory notice requirements and such notice provisions are to be
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"rigidly enforced." In re Application of the County Treasurer & ex officio County Collector, 403
Ill. App. 3d 985, 990, 935 N.E.2d 570, 574 (2010) (hereinafter Muskat). In Muskat, the tax
purchaser argued the property owner's daughter was not an interested party entitled to notice
under section 22-10 because she was a devisee in the property owner's will. Id. at 989, 935
N.E.2d at 572. The Second District disagreed. The daughter was vested with title to half of the
property when the will was admitted to probate. Id. at 991, 935 N.E.2d at 576. The daughter
had the right to redeem the property and other rights of ownership. Id. The Muskat court
concluded the daughter was entitled to notice. Id. While Muskat does not answer whether
Nancy is entitled to contest the deed under section 22-45(4), it supports the conclusion she is an
interested party entitled to notice. Ballinger's interpretation creates a disparity between persons
who are entitled to notice and those who are entitled to section 22-45(4)'s protections. Although
the Property Tax Code requires notice to all interested persons, persons with an interest
contained in public records, but not the recorder's office, could not use section 22-45(4) to
contest the tax purchaser's failure to conduct a "diligent inquiry" and provide them with notice.
We should not read such a limitation into the statute (Hamer, 2013 IL 114234, ¶ 18, 990 N.E.2d
1144) and interpret section 22-45(4) in a manner to render it ineffective for certain property
owners who are entitled to notice. A more reasonable and harmonious interpretation of section
22-45(4) is one which reads "recorded ownership or other recorded interest" as an interest which
can be inferred from the public records. This allows any person or party with an ownership or
other interest ascertainable from the public records (i.e., those entitled to notice) to use section
22-45(4) to challenge the tax purchaser's failure to provide him or her with notice.
¶ 35 Ballinger's proposed construction of section 22-45(4) of the Property Tax Code
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creates tension with the relevant probate and property law. First, he has not provided any Illinois
authority requiring a will to be recorded in the recorder of deeds' office. For a long time, Illinois
law only required an administrator's deed when real property was sold during administration of
an estate. See Brian v. Melton, 125 Ill. 647, 651, 18 N.E. 318, 319 (1888); 755 ILCS 5/20-10
(West 2012). Then in 1980, the legislature added the independent administration article to the
Probate Act of 1975. Pub. Act 81-213, § 1 (eff. Jan. 1, 1980). Under the independent
administration provisions, when the decedent's "estate includes an interest in real estate that has
not been sold by the independent representative, the independent representative must record and
deliver to the persons entitled thereto an instrument which contains the legal description of the
real estate and releases the estate's interest." 755 ILCS 5/28-10(a) (West 2012). As suggested by
the parties at oral argument, this provision would have unquestionably made it easier to
determine Nancy's interest in the property. The problem is Gertrude's will was probated in 1946,
before the requirements of section 28-10 of the Probate Act of 1975. We must be careful not to
impose current standards of probate practice on earlier times and, as this case highlights, we
should also read section 22-45(4) in a manner to preserve interests transferred pursuant to
previous probate practice. (Again, earlier cases referred to wills as being "recorded" in the
probate court, which reflects a practice where wills were not recorded in the recorder's office.)
Illinois law has long accepted a will admitted to probate transfers title to the real estate to the
devisees named in the will. In re Estate of Stokes, 225 Ill. App. 3d 834, 839, 587 N.E.2d 564,
568 (1992); 755 ILCS 5/4-13 (West 2012); see also Havill v. Havill, 332 Ill. 11, 15, 163 N.E.
428, 429 (1928) ("A will speaks from the death of the testator. At the moment of his death the
rights of his heirs and devisees to succeed to his estate are fixed and vested ***."); In re Estate of
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Matthews, 409 Ill. App. 3d 780, 784-88, 948 N.E.2d 187, 191-95 (2011) (discussing devisee's
responsibility to pay real estate taxes). In language unchanged since 1871, section 33 of the
Conveyances Act states a will "may be recorded in the same office where deeds and other
instruments concerning real estate may be required to be recorded." 765 ILCS 5/33 (West 2012);
1871-72 Ill. Laws 282 (§ 33). In Clark, 335 Ill. at 186, 166 N.E. at 539, a case decided by our
supreme court in 1929, the question was "[w]hether a probated will devising real estate is
constructive notice in respect to land lying within the county in which the will was probated."
The appellants argued the record of the probate of a will was not constructive notice of the
contents of the will until it was recorded in the recorder of deeds office. Id. at 187, 166 N.E. at
539. The supreme court turned to section 33 of the Conveyances Act. The court stated:
"The section contains no provision requiring that a will probated in
the county in which the real estate is situated shall not be
constructive notice of its contents to anyone dealing with such
land, nor is there any section of the Conveyance act made
applicable to wills. Clearly, the legislature in passing the various
sections of that act requiring recording in the recorder's office of
foreign wills and other instruments in writing could not have
overlooked the fact that a will devising lands situated in the county
in which it is probated as directly affects title to real estate in such
county as any other instrument which is required by the
Conveyance act to be recorded in the recorder's office. It would
seem, therefore, that the legislature took cognizance of the fact that
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the probate of a will should constitute constructive notice. The
legislature must have recognized that the probate or county court is
a court of record and its records are a part of the records of the
county. One examining the condition of a title, as is well
recognized, is required to look further than the recorder's office to
know the condition of the title. If there be a judgment against the
land owner of record in that county, either as an original judgment
or a transcript of a judgment of a foreign court, the purchaser of
real estate is required to take notice of the lien of such judgment
though it is not filed of record in the recorder's office. So with
special assessments and special taxes. There appears, therefore, to
be no reason why the legislature should have required that in
addition to recording a will in the probate court it should likewise
be recorded in the recorder's office, for to so require would not
tend to give additional protection to the purchaser and would
impose an unnecessary burden on the land owner." Clark, 335 Ill.
at 189-90, 166 N.E. at 540.
Ballinger's argument is similar to the one rejected by the supreme court in Clark. He too would
ignore probate records. This despite the well-established principle a will admitted to probate
transfers title to real property and the fact the Conveyances Act does not require a will to be
recorded. See Stokes, 225 Ill. App. 3d at 839, 587 N.E.2d at 568; Havill, 332 Ill. at 16, 163 N.E.
at 430 ("The effect of the probate of a will is to vest the title in the devisee as completely as a
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deed from the owner of property vests the title in his grantee ***."). As the supreme court
identified in Clark, this imposes an unnecessary burden on an owner to protect his or her interest.
We decline the invitation to read section 22-45(4) in such a manner that permits tax purchasers to
ignore probate records while frustrating long-standing probate and property law. Moreover,
under Ballinger's reading, persons who acquired an interest in real property through a will not
recorded in the recorder's office would not be able to challenge a tax purchaser's failure to
provide him or her with notice. We will not read section 22-45(4) in a way to place at risk
interests not recorded in the recorder's office although the interest is identifiable in other public
records. It is more reasonable to interpret "recorded ownership or other recorded interest" as an
interest that can be inferred from public records. While this requires a tax purchaser to expand
his search beyond the recorder's office, it eliminates unnecessary tension between section 22-
45(4) and well-established probate and property law.
¶ 36 Ballinger's interpretation is ultimately untenable. His interpretation would (1)
transform the "diligent inquiry" requirement in to a limited search of the recorder of deeds'
records, (2) impose a requirement not contemplated by probate and property law on a property
owner who acquired her interest through a will not recorded in the recorder's office, and (3)
frustrate a true owner's ability to reclaim her property. We will not so interpret section 22-45(4)
without a clear indication the legislature intended such results. The problems created by
Ballinger's interpretation of section 22-45(4) can be resolved by defining "a recorded ownership
or recorded interest" as an interest that can be inferred from the public record. This is supported
by the plain meaning of "recorded," the historical usage of the word, the Property Tax Code's
notice provisions, and the relevant probate and property law.
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¶ 37 2. Did Nancy Have a Recorded Interest?
¶ 38 Ballinger asserts Nancy does not have a "recorded" ownership interest because
Gertrude's will does not specifically name Nancy as a grandchild. It is uncontested Gertrude's
will was probated after her death and a matter of public record since 1946; it devised the
property, after the life estate, to her "grandchildren"; and Nancy is Gertrude's granddaughter.
Ballinger has offered no legal citation or convincing argument in support of his contention
Nancy's ownership interest should be ignored because she was not expressly named in the will.
See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013) (argument must contain citation to legal authority).
As respondents point out, the use of a class gift is a common drafting technique to name persons
who are uncertain at the time of the will's drafting. See Krog v. Hafka, 413 Ill. 290, 298, 109
N.E.2d 213, 217 (1952) (definition of "class gift"). We reject Ballinger's contention Nancy does
not have a recorded interest because the will included a class gift to Gertrude's "grandchildren"
but did not state Nancy's name. As a grandchild, Nancy had a recorded interest.
¶ 39 D. Ballinger's Claim He Conducted a Diligent Inquiry
¶ 40 Ballinger contends a question of material fact exists as to whether he conducted a
diligent inquiry to determine Nancy's ownership interest. Ballinger takes issue with the trial
court's interpretation of what is required for a diligent inquiry and argues the Property Tax Code
does not include an "exhaustive list" of what is required. He adds no provision requires tax
scavengers to (1) serve a tax notice on "every interested party or owner *** no matter what the
cost" and (2) conduct "interviews or discussions with the neighbors or purported interest holders
in attempting to fully determine every single individual known and thus served." On the merits,
he asserts (1) Gertrude's probate file does not identify Nancy as a granddaughter, (2) "when the
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life tenant *** died her estate was probated and again Nancy Jones' name was not mentioned
anywhere in that file," (3) the life estate holder's will included a provision transferring the
property to her daughter, and (4) his efforts revealed William was an interested party and he was
served with notice. He appears to assert the diligent inquiry requirement is satisfied where notice
publication is given to unknown owners.
¶ 41 1. What Is a Diligent Inquiry?
¶ 42 The Property Tax Code requires the tax purchaser to conduct a "diligent inquiry"
to locate property owners and interested parties. 35 ILCS 200/22-15, 22-20, 22-45(4) (West
2010). Our supreme court has defined a "diligent inquiry" for purposes of locating property
owners in a tax sale proceeding as follows:
" 'such inquiry as a diligent man, intent upon ascertaining a fact,
would usually and ordinarily make,—inquiry with diligence and in
good faith to ascertain the truth.' " Shockley v. Good, 13 Ill. 2d
298, 302-03, 148 N.E.2d 763, 765 (1958) (quoting Van Matre v.
Sankey, 148 Ill. 536, 562, 36 N.E. 628, 635 (1893)).
This inquiry must be "as full as the circumstances of the situation will permit." Liepelt, 17 Ill. 2d
at 433, 161 N.E.2d at 858. As discussed above, Illinois courts have held "a tax purchaser has
failed to act with minimal diligence if he has not made reasonable efforts to notify all persons
whose interest may reasonably be inferred from the public records regarding the property's
ownership." Glohry, 2011 IL App (1st) 101966, ¶ 44, 955 N.E.2d 669.
¶ 43 2. Did Ballinger Make a Diligent Inquiry?
¶ 44 On appeal, Ballinger contends a question of material fact exists about whether he
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made a diligent inquiry. He does not contest what he did but takes issue with the trial court's
conclusion he did not conduct a diligent inquiry. Our review of Ballinger's argument and the
record reveals no dispute as to the material facts. The dispute between the parties is over the
legal effect of the settled facts.
¶ 45 Ballinger's argument about the trial court's interpretation of the "diligent inquiry"
requirement misunderstands what is required by the Property Tax Code. The Property Tax Code
repeatedly requires tax sale purchasers to conduct a "diligent inquiry" to locate owners and
interested parties. See 35 ILCS 200/22-15, 22-20, 22-45(4) (West 2010). As our supreme court
long ago stated, a diligent inquiry includes the understanding "[p]rudent and diligent men, who
in good faith are seeking to find, pursue those lines of inquiry open to them which may lead to
the ascertainment of the fact, and exercise at least ordinary diligence therein." Van Matre, 148
Ill. at 562, 36 N.E. at 635. As the supreme court stated in Clark, "[o]ne examining the condition
of a title, as is well recognized, is required to look further than the recorder's office to know the
condition of the title." Clark, 335 Ill. at 189, 166 N.E. at 540. While an "exhaustive list"
covering every possible scenario might be desirable, the Property Tax Code gives tax purchasers
the ability to determine what is required in a given situation. Some cases may only require a
quick investigation while others may require more effort and shoe leather. A tax purchaser need
not conduct an open-ended search (In re Application of the County Collector, 225 Ill. 2d 208,
237, 867 N.E.2d 941, 956 (2007) (hereinafter Lowe)), but all cases require a tax purchaser to
pursue all lines of inquiry open to him. These lines of inquiry include sources such as probate
records, public directories, voter registration records, and visiting the property. See In re
Application of the County Collector, 163 Ill. App. 3d 461, 464, 516 N.E.2d 736, 738 (1987) (La
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Salle Street Acquisitions, appellant); Muskat, 403 Ill. App. 3d at 994, 935 N.E.2d at 578; Lowe,
225 Ill. 2d at 231, 867 N.E.2d at 953; Diedrich, 311 Ill. App. 3d at 320, 724 N.E.2d at 6. In our
contemporary, technologically connected society, a diligent individual would undoubtedly utilize
the Internet—with its enormous reach and nearly instant results—to locate property owners and
addresses. We note in the Fourth District alone there are at least 10 counties with searchable
online property records.
¶ 46 In determining whether a question of material fact exists several procedural
principles of summary judgment are important to remember: (1) parties filing cross-motions for
summary judgment concede the absence of factual issues and request the court to decide the
question presented as a matter of law (Pielet, 2012 IL 112064, ¶ 28, 978 N.E.2d 1000); (2) "facts
contained in an affidavit in support of a motion for summary judgment which are not
contradicted by counteraffidavit are admitted and must be taken as true for purposes of the
motion" (Purtill v. Hess, 111 Ill. 2d 229, 241, 489 N.E.2d 867, 871-72 (1986)); and (3) a
nonmovant cannot rest on his pleadings to create a genuine issue of material fact if the moving
party has supplied facts which, if not contradicted, would warrant judgment in the movant's favor
as a matter of law (Land v. Board of Education of City of Chicago, 202 Ill. 2d 414, 432, 781
N.E.2d 249, 260 (2002)). Here, Ballinger conceded the absence of a factual issue when he filed
a cross-motion for summary judgment. Further, respondents filed four affidavits in support of
the summary judgment motion but Ballinger did not file a counteraffidavit. Ballinger admitted
all facts contained in respondents' affidavits, including the following: (1) he did not contact
William, (2) Clifford had farmed the property for the past 15 years, and (3) no one with an
ownership interest received notice of the tax proceedings. Now on appeal, Ballinger does not
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contest the evidence showing he did not (1) ask tenants, neighbors, local farmers, or anyone else
about who owned the land; (2) ask William who owned the property or how to contact them; (3)
conduct an Internet search; or (4) try to locate Nancy. Ballinger does not argue he did otherwise.
Contrary to his assertions, Ballinger has conceded every fact relevant to this appeal.
¶ 47 His arguments about Gertrude's will miss the point. The will's failure to identify
Nancy does not absolve Ballinger from determining who Gertrude's grandchildren were. His
efforts focused on the daughter-in-law's estate where he was able to identify three grandchildren.
The record is clear, however, he did not examine Gertrude's other two sons to determine if those
sons had children. Had he traced the family line through Melville he would have discovered
Nancy. He investigated one branch of the family tree while ignoring the other two branches of
the tree. Ballinger's efforts to serve Clifford and Joan are telling of his minimal approach to
locating the property's owners. The notices sent to Joan and Clifford were returned
undeliverable. Yet Ballinger did not make an effort to locate them by contacting William, using
Clifford's Tuscola address contained on the federal tax lien, or even determining if "Joan Jones
Moore" was Joan's correct name. See Jones v. Flowers, 547 U.S. 220, 229 (2006) (noting tax
sale purchasers "who actually desired to inform a real property owner" of the proceedings would
not just "do nothing when a certified letter sent to the owner is returned unclaimed"). As a result,
no one with an ownership interest in the property was actually notified of the tax sale
proceedings. We reject Ballinger's contentions a publication notice cures his failure to conduct a
diligent inquiry. See Jones, 547 U.S. at 237. As the trial court stated, Ballinger's efforts
constitute "an absolute failure" and reveal a "de minimis approach" in attempting to locate the
property owners.
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¶ 48 E. The Trial Court's Order
¶ 49 Section 22-80 of the Property Tax Code requires orders vacating tax deeds to
declare the tax sale to be a sale in error pursuant to section 21-310 of the Property Tax Code (35
ILCS 200/21-310 (West 2010)) and direct the county collector to issue a refund to the tax
purchaser. 35 ILCS 200/22-80(a) (West 2010). The March 3, 2013, order did not include
provisions required by section 22-80 of the Property Tax Code. We remand with directions for
the trial court to amend its order to comply with section 22-80 and order respondents to pay the
delinquent taxes owed.
¶ 50 III. CONCLUSION
¶ 51 We affirm the trial court's judgment. We remand with directions for the trial
court to amend its order to comply with section 22-80 of the Property Tax Code (35 ILCS
200/22-80 (West 2010)) and order respondents to pay the delinquent taxes owed.
¶ 52 Affirmed and remanded with directions.
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Appendix A
Case No. 4-13-0261
Gertrude Jones
(d. May 2, 1946)
George Jones (d. Dec. 13, 1945) Melville Jones Theodore Jones
Cecily Jones (d. Jan. 3, 1984)
Nancy Jones
Joan J. Cook Georgiana J. Bailey William Jones Taylorville, IL
(d. April 30, 2011) Tuscola, IL
Douglas Moore Richard Moore Clifford Jones
Lexington, SC Columbia, TN Champaign, IL