LLOYD GIORDANO, Pеtitioner-Appellant/Cross-Appellee, v. GREGORY TRZASKA, Respondent-Appellee/Cross-Appellant.
No. 2-13-0778
Appellate Court of Illinois, Second District
Order filed May 6, 2014
2014 IL App (2d) 130778-U
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Honorable C. Robert Tobin, III, Judge, Presiding.
Justices Zenoff and Birkett concurred in the judgment.
ORDER
¶ 1 Held: The trial court properly vacated its issuance of a tax deed to the petitioner, where the petitioner procured the tax deed based on false representations in his affidavit concerning his efforts to locate the respondent property owner. Nevertheless, the court did not abuse its discretion in declining to award
¶ 2 In 2006, petitioner, Lloyd Giordano, purchased the general property taxes for parcel identification number (PIN) 07-18-200-001 at the annual Boone County tax sale. The property was owned by respondent, Gregory Trzaska. In 2010, following the expiration of the redemption period, Giordano petitioned for the tax deed. In December 2010, based solely on the representations made in Giordano’s affidavit supporting his pеtition, the trial court granted the
I. BACKGROUND
¶ 4 In 2002, Trzaska, with the help of his family, purchased the property at issue for investment purposes. The property consists of 98 acres of farm land, 78 of which are actively farmed. It is one of two parcels of adjoining farm land in Boone County. The other parcel, which Trzaska also purchased, is much smaller, just six acres. Each of the adjoining parcels has its own PIN. The deed transferring the property was recorded in the Boone County recorder’s office. The deed listed Trzaskа’s address as being in Lake Forest, and the collector’s office sent the tax notices to that address.
¶ 5 Trzaska’s family regularly purchases real estate for investment purposes, and, for the past 20 years, Attorney Michael Manuel, of the law firm Goldberg Kohn, Ltd., has represented them in these transactions. The deed named Manuel as the attorney handling the transaction, and it listed his address at Goldberg Kohn as 55 E. Monroe Street, Suite 3700, Chicago. In 2008, Goldberg Kohn moved within the same building, to suite 3300. According to Manuel, even after the move, he continued to receive mail that was addressed to the old suite number, because those in charge of
¶ 6 In 2003, Trzaska moved to Barrington. Trzaska completed paperwork with the Boone County Treasurer, advising that tax notices should now be sent to the Barrington address. In 2006, Trzaska moved to Invernеss. Trzaska neglected to inform the Boone County treasurer of the change of address. He did, however, instruct the U.S. Postal Service to forward his mail to the Inverness address. When the forwarding order expired, Trzaska stopped receiving his tax notices. Trzaska did not pay his taxes for the years 2006 through 2009. The delinquency amount totaled $1,661.90.
¶ 7 According to Trzaska, he first heard that he was delinquent in his tax payments in March 2010. A neighbor in Boone County had called his aunt, Barbara Colletier, who managed the property, to inform her that the taxes were going to be sold at the upcoming county tax sale. If sold, and following a maximum three-year redemption period, the purchaser of the taxes would have the opportunity to pursue a judgment for tax deed after following certain statutory protocol, including a diligent inquiry and effort to find and serve the interested party.
¶ 8 Upon hearing that the taxes were to be sold, Trzaska called the Boone County treasurer and asked how much was owed on the two parcels. Trzaska obtained а certified check for the amount due on the smaller parcel and wrote only that PIN number on the check. He omitted the PIN number of the larger parcel at issue in this appeal, and did not pay its delinquent taxes. Trzaska claimed that the person he spoke with at the Treasurer’s office told him that making note of only one of the PINs was sufficient. He also claimed that person told him he would not need to fill out paperwork for a change of address; the person would change it for him.
¶ 10 On July 30, 2010, Giordano petitioned for the tax deed for the property. Giordano attached an affidavit making various representations of diligence to the court. For example, Giordano reported that:
“16. The persons named at the end of this paragraph [i.e., Trzaska] cannot upon diligent inquiry be found in Boone County, nor on diligent inquiry can the place of residence of [Trzaska] be ascertained. Such inquiry was made prior to three (3) months before the expiration of the extended period of redemption.
Unless otherwise hereinafter stated, such inquiry consisted of a search of the local telephone directories, telephone calls to persons listed therein bearing the same names, inquiry of persons residing in the vicinity of the above described real estate, inquiry at the applicable address, if any, listed in the pertinent documents in the office of the Recorder of Deeds of the county aforesaid, and (in the case of heirs and devisees) inquiry at the
applicable addresses, if any listed in the pertinent documents in the office of the Probate or Civil Divisions of the Clerk of the Circuit Court in the county aforesaid, and inquiry at the applicable addresses, if any, listed in the documents of the Collector of the county aforesaid.” (Emphases added.)
Neither party disputes that the Boone County collector listed Trzaska’s addresss as 130 Rainbow Road in Barrington, and the Boone County recorder of deeds listed Trzaska’s address as 640 Old Elm Road in Lake Forest. Also, neither party disputes that Trzaska’s attorney’s address was listed on the deed itself.
¶ 11 Giordano also attested that he went to the subject property to speak with neighbors to seek the contact information of the owner (Trzaska) or occupant (the person farming the land):
“Affiant interviewed neighbors (2 mature women) at 3785 Cherry Valley Rd. house across from East side of property; they did not know the owner or occupant of the subject property. The women stated that the property was originally owned by the Schlie brothers (bachelors) who lived in a house at the North side of Rossetter Rd. The Schlie brothers sold the property to someone from Chicago perhaps 10 years ago. The house was torn down.”
And,
“Affiant interviewed neighbors (man and woman) at 3579 Cherry Valley Rd. house (at Wheeler [Road].) across from Southeast side of property; they did not know the owner or occupant of the subject property.”
¶ 12 As is less critical to the instant appeal, the affidavit also stated that Giordano: (1) caused notice of the petition for tax deed to be published on August, 8, 10, and 11, 2010, in a Boone County newspaper, The Belvidere Republican; (2) described the activity on the property as “no
¶ 13 On December 2, 2010, the trial court entered an order for tax deed. It did so based solely on the representations made in Giordano’s affidavit. It did not question Giordano in court. On March 8, 2011, the Boone County clerk issued the deed.
¶ 14 On March 22, 2011, Trzaska petitioned pursuant to
¶ 15 On September 11, 2012, the trial court conducted a hearing on the motion to vacate. Giordano testified to his personal background. He has a bachelor’s degree in engineering from the Illinois Institute of Technology and a masters in business administration from the University of Chicago. He worked for Motorola, where he was involved in computer technology. He retired in 1994. He began participating in tax sales in 1977, and he continued this practice in retirement. He estimated that he has been involved in 350 tax sales. He has acquired about 30 to 35 properties through the tax sales.
¶ 16 Trzaska, through his attorneys, questioned Giordano about his averment that he “inquired at” the “applicable addresses” listed on the “pertinent documents,” i.e., the Lake Forest, Barrington, and attorney addresses. For example, in regards to the Barrington address, Giordano testified:
“Q: So, unless otherwise stated, you told this court in this affidavit that you visited the addresses listed on the pertinent documents in the office of the recorder of deeds, right?
A: Yes.
Q: And one of the—and you also said that you visited, again, unless otherwise stated, that you visited the locations listed in the documents of the collector of the county, Boone County, right?
A: Yes.
Q: But you didn’t, right? You didn’t go to the [Barrington] Rainbow Road address, and you didn’t otherwise state in this affidavit, right?
A: No. I didn’t go to the [Barrington] Rаinbow Road property; it’s true.
Q: And you didn’t otherwise state in the affidavit that you didn’t go to the [Barrington] Rainbow Road property?
A: Apparently not.
Q: So the affidavit is false?
A: No. It was probably an oversight.
Q: It’s an oversight, but it’s also false.
A: Well, technically I guess it is.
Q: It’s false.
A: I know that’s—
Q: Not technically; it’s false.
A: No, it’s not.
Q: You made an oversight, and you submitted an affidavit that you swore to. And it is completely inaccurate on this point. Yes or no?
A: I didn’t go to the property; that’s true.”
¶ 17 When asked why it was that he stated in his affidavit that he inquired at the “applicable addresses” when he did not, Giordano stated that the addresses listed on the pertinent documents were not, in fact, the “applicable addresses.” Giordano stated that it was obvious the Lake Forest address was superseded by the Barrington address. Therefore, in Giordano’s view, the Lake Forest address was not an applicable address. The Barrington address was outdated because Giordano received mail back indicating that the forwarding order had expired. Therefore, in Giordano’s view, the Barrington address was not an applicable address. The attorney did not have a personal interest in the case. Therefore, in Giordano’s view, the attorney’s address was not an applicаble address. Giordano further opined that the statute did not require him to search outside Boone County. Therefore, in Giordano’s view, this was a second reason that none of the three addresses were applicable.
¶ 18 Giordano testified that he conducted an Internet search on a search engine called “Zaba Search.” Giordano typed in the words “Gregory Trzaska” and requested all Illinois results. That search produced 89 similar names but no “Greg Trzaska” and no “G. Trzsaka.” Giordano initially stated that the result “G. Trzaska” appeared, but then he corrected himself. Giordano could have found out more information about these 89 listed names, many of which were duplicates, but the website charged a fee, and Giordano did not pursue the search further.
¶ 19 Perhaps anticipating this testimony, Trzaska’s attorneys instructed a paralegal at their firm to perform an Internet search of Trzaska. The paralegal reported the results of her Internet search in an affidavit that was submitted into evidence. The parаlegal attested that she was able to locate Trzaska’s present and accurate Inverness address in under 15 minutes. Specifically, she accessed the publicly available Google Search engine and typed the words “Greg Trzaska Barrington [i.e.,
¶ 20 Trzaska also submitted the affidavit of Warren Kelm, the farmer who farmed the property at issue. Kelm stated that he had been farming the property for the past six years. On or about March 14, 2011, Giordano called him and informed him that he, Giordano, now owned the property. Giordano told him that he obtained his contact information after asking neighbors in the area who farmed the property.
¶ 21 When questioned as to the apparent inconsistencies betweеn Kelm’s affidavit and his own (wherein he stated that the neighbors were unable to tell him who farmed the property), Giordano stated that Kelm was mistaken. He did not obtain Kelm’s contact information from the
¶ 22 At the close of evidence the trial court took the matter under advisement. In a written order, it granted the petition to vacate the order for tax deed, finding that the deed had been procured based upon Giordano’s fraudulent representations. It noted for the record that it did not believe Trzaska’s claims that the person he spoke with at the treasurer’s office told him that making note of only one PIN was sufficient to pay outstanding taxes, or that he would not need to fill out change-of-address paperwork. Still, Trzaska’s actions leading to the tax sale were not at issue in this case; Giordano’s actions in procuring the tax deed were at issue. The court explained its ruling:
“Giordano made false statements to the court with the intent to deceive the court into believing that Trzaska could not be found and he did so with the ultimate goal of obtaining an order for tax deed from [the court]. As a starting point, it is material that [the court] did not ask any questions of Giordano [in initially issuing the deed]. If [it] had ***, the accuracy of the affidavit would be less of an issue. ***.
Of additional importance is the intelligence and experience of [Giordano]. *** This is not an average person of average intelligence unfamiliar with the process.
As for his assertion in his affidavit that he conducted a due diligent search, the question is *** whether Giordano knew that his actions did not rise to the level of due diligence. ***.
Under the totality of the circumstances, Giordano displayed a pattern of deception. The property was being farmed, yet he made no reasonable inquiry to find the name and
contact information of the person farming it. The original warranty deed named Trzaska’s attorney and provided his address, yet Giordano made no efforts to contact that attorney to inquire as to Trzaska’s location. He stated in his affidavit that he went to Trzaska’s last known address and the applicable addresses listed in the pertinent documents in the office of the Recorder of Deeds; yet, this was false. He conducted an Internet search for Trzaska and *** he did not explore [the] 89 results because he would have been charged a fee. All of this shows a pattern by Giordano to keep his inquiry to a bare minimum with the hopes of not locating the property owner. However, while keeping his efforts low, he swore under oath [in his affidavit] that his efforts to locate Trzaska were greater than they were.”
¶ 23 Giordano filed a motion to reconsider, and Trzaska filed a motion for
¶ 24 The trial court denied both motions. As to the
II. ANALYSIS
¶ 26 On appeal, Giordano challenges the trial court’s finding that Trzaska was entitled to have the order for deed vacated. Trzaska cross-appeals, arguing that the trial court abused its discretion in denying his request for
A. Appeal: Vacating the Order for Deed
i. Criteria for Vacating the Order for Tax Deed and Standards of Review
¶ 29 Here, the trial court vacated the order for tax deed pursuant to
“[A] [t]ax deed [is] incontestable unless [the] order [is] appealed or relief [is]
petitioned. Tax deeds issued under Section 22-40 are incontestable except by appeal from the order of the court directing the county clerk to issue the tax deed. However, relief from such order may be had under [s]ections2-1203 or2-1401 of the Code of Civil Procedure [735 ILCS 5/2-1203 or735 ILCS 5/2-1401 ] in the same manner and to the same extent as may be had under those [s]ections with respect to final orders and judgments in other proceedings. The grounds for relief under [s]ection2-1401 shall be limited to:(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 , аnd 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 bySections 22-10 through22-30 .”35 ILCS 200/22-45 (West 2010) .
Here, the court applied the third subsection, concerning fraud or deception. Fraud in this context is a wrongful intent or an act calculated to deceive. Murray v. Gerus, 67 Ill. App. 3d 122, 124 (1978). The fourth subsection, concerning diligence, could not be used to vacate the deed, because Trzaska was named on the publication notice. However, the question of diligence did weigh into the court’s determination, because the court found that Giordano falsely stated his own diligence in order to obtain the deed in the first place.
¶ 30 The parties state that the grant of a
“[T]he operation of the abuse of discretion standard is the result of the erroneous belief that a
section 2-1401 petition ‘invokes the equitable powers of the court’ ***. When the legislature abolished the [common-law] writs in favor of today’s statutory remedy, it became inaccurate to continue to view the relief in strictly equitable terms. *** Because relief is no longer purely discretionary, it makes little sense to continue to apply an abuse of discretion standard on review.” Id. at 15-16.
The Vincent court essentially held that the standard by which we should review the trial court’s disposition of a
¶ 31 After Mills, this court split on the application of Vincent to
¶ 32 A finding is against the manifest weight of the evidence if the opposite conclusion is clearly evident, or if the finding is unreasonable, arbitrary, or not based on the evidence. People v. Holman, 402 Ill. App. 3d 645, 648 (2010). A trial court has the opportunity to observe the witnesses’ demeanor; it is, therefore, in a superior position to determine the credibility of thе witnesses and to resolve conflicts in their testimony. People v. Richardson, 234 Ill. 2d 233, 251 (2009).
ii. Evidence Supports Finding that Giordano Procured Deed with False Representations of Diligence
¶ 34 The Property Tax Code requires a tax purchaser to make a “diligent inquiry and effort” to
¶ 35 Courts have found tax deeds fraudulently procured where the order for tax deed was granted following false statements in the affidavit. See, e.g., Schott v. Short, 131 Ill. App. 2d 854, 860-61 (1971) (finding of fraud supported where purchaser falsely attested that he personally served joint owner). Additionally, courts have held that, “[w]here the deed contains information [from which the owner’s contact infоrmation could be ascertained], and the purchaser fails to [act upon] it, there is sufficient evidence of bad faith to warrant concluding that the deed was procured by fraud.” Murray, 67 Ill. App. 3d at 132 (finding of fraud supported where, in procuring the deed, purchaser failed to inform the court that the deed contained the contact information of the owner’s attorney, and purchaser did not bother to contact the attorney).
¶ 36 Here, the evidence supports the trial court’s finding that Giordano made false representations in his affidavit as to his diligence, that Giordano procured the order for tax deed based on these misrepresentations, and that this amounted to fraud. The evidence supports the trial court’s finding of fraud on at least four points: (1) false representations concerning the attorney’s address search, combined with bad faith in failing to investigate that obvious lead; (2)
1. Attorney Contact Information
¶ 38 Giordano argues that he was not required to contact the attorney, and, even if a typical diligent search would have included contacting the attorney, the particular circumstances at play before him relieved him of doing so. Of course, had Giordano contacted the attorney, he would have located Trzaska. Attorney Manuel continues to represent Trzaska’s family in real estate transactions, and his firm, along with Boone County local counsel, has represented Trzaska in this case, both before the trial court and here on appeal.
¶ 39 We first address whether a typical diligent search requires contacting the attorney, and we hold that, while not statutorily required, it is a reasonable step in most diligent searches. It is true that the Property Tax Code does not expressly require a tax purchaser to contact the attorney listed in the deed in order to satisfy the diligence requirement. See, e.g.,
¶ 40 We next address the circumstances Giordano believes made it unnecessary to contact the attorney. The strongest of Giordano’s listed circumstances include: (1) the deed listing the attorney’s name was eight years old; (2) the attorney did not have an office in Boone County or in a county adjacent to Boone County; and (3) the attorney did not list his phone number on the deed. Additionally, Giordano notes that, while not known to him at the time, Trzaska’s attorney had moved suites within the same building, after the issuance of the 2002 deed. Giordano points to the attorney’s testimony that he was aware of one instance in the several years following the move where mail addressed to his old suite was not received, and Giordano argues that there could have been many more instances. The trial court reasonably rejected the latter argument as “purely academic.” Giordano never attempted to contact the attorney, so, whether the change of suite number would have created an obstacle was speculative. In any case, sending a letter that is not received is not the same as affirmatively searching for an attorney’s contact information. The trial court was certainly within the bounds of reason when it inferred that an intelligent person such as Giordano should have been able to locate an attorney in a Chicago firm when armed with the attorney’s name and 2002 firm address as a starting point. The circumstances listed by Giordano do not take this case outside the general practice guidelines that a tax purchaser should contact the attorney listed on the deed as part of a diligent search to locate the owner.
¶ 41 More importantly, regardless of whether Giordano should have contacted the attorney as
¶ 42 In sum, courts have held that fraud can be inferred from the bad faith that is demonstrated when a purchaser fails to follow up on information contained in the deed from which the truth concerning the person to be notified could have been ascertained. Murray, 67 Ill. App. 3d at 132. Here, not only did Giordano fail to follow up on the attorney’s contact information that was contained in the deed, from which he likely could have located Trzaska, but he falsely represented that he did follow up on said information.
2. Lake Forest and Barrington Addresses
¶ 44 This brings us to Giordano’s false representations concerning the Lake Forest and Barrington addresses. Again, in his affidavit, Giordano stаted that he made inquiry “at the applicable addresses, if any, listed in the pertinent documents” at the relevant county offices. The Lake Forest address is listed on the 2002 deed in the office of the county recorder. The Barrington address is listed at the collector’s office as the address to which tax notices should be sent. However, contrary to his affidavit, Giordano testified at the hearing that he did not visit these addresses. As we have stated, a finding of fraud may be supported where the purchaser’s testimony at the hearing conflicts with the affidavit supporting the request for deed. Short, 131 Ill. App. 2d at 860-61.
¶ 45 Giordano urges that the trial court should not have inferred deceptive intent from the
¶ 46 The trial court reasonably rejected this argument, which Giordano began to weave on the spot through his testimony. We agree with Trzaska that Giordano’s explanation of the discrepancy amounts to word play. The only addresses listed on the pertinent documents, aside from the property at issue, were the Lake Forest address, the Barrington address, and the attorney’s address. Giordano did not make inquiry “at” any of them.
¶ 47 We considered that the phrase “inquiry at” need not mean Giordano physically went to the property. However, this interpretation would be inconsistent with his argument that the addresses were nоt “applicable” to begin with, and, if they were applicable, he would have gone to them. In any case, this explanation would not have saved his averments concerning the attorney’s address, which he did not physically visit or attempt to investigate in any way. Moreover, the surrounding text specifies that Giordano performed the listed tasks “unless otherwise stated,” and thereby falsely assured the trial court that any nuance or exception would be affirmatively stated.
¶ 48 Giordano would have been in a stronger position to argue that the trial court should have viewed his word choice as a misunderstanding made in good faith if it had been an isolated
3. Locating the Farmer
¶ 50 The evidence also supports the trial court’s finding that Giordano did not diligently search for the farmer that farmed the property, i.e., Kelm. Finding Kelm would have been an obvious step to be taken by a “diligent person, intent on ascertaining” Trzaska’s contact information. McDonough County, 361 Ill. App. 3d at 508-09 (concerning the general standard for diligence). When Giordano visited the property, he noticed that it was actively farmed. The farmer would, logically, have Trzaska’s contact information because he had contracted to farm the land. As Giordano himself testified regarding his own farming contracts, such a contract typically requires coordination between the parties concerning crop choice and payments.
¶ 51 Giordano attested that, after talking to the neighbors, he was unable to locate Kelm. Kelm attested that the neighbors did put him in contact with Giordano. Beyond the conflict between Giordano’s and Kelm’s affidavits, the bigger point is that, coincidence or not, Kelm proved reasonably easy to locate when finding a farmer suited Giordano’s purposes. This, in combination with other shortcomings in Giordano’s initial search, supports the trial court’s finding that Giordano did not conduct his initial search in the good faith averred to in his affidavit.
4. Internet Search
¶ 53 Finally, Giordano’s surface-level Internet search supports the trial court’s finding of bad faith. Illinois Institute for Continuing Legal Education practice guides recognize Internet
¶ 54 We acknowledge that the trial court misstated the evidence when it stated that Giordano’s Internet search led to 89 “G. Trzaska” results. Indeed, Trzaska corrected himself and testified that there were no results for “Gregory Trzaska” or for “G. Trzaska.” However, that is not the point. The point is that the trial court found Giordano’s Internet search to be half-hearted with unnecessary, self-imposed limits.
¶ 55 Also missing the point is Giordano’s citation to case law stating that diligence does not require an endless, open-ended search. See, e.g., Jones v. Flowers, 547 U.S. 220, 236 (2006) (discussing the government’s burden to notify the owner prior to a tax sale); Apex, 225 Ill. 2d at 230 (the purchaser did not fraudulently procure the 1996 tax deed where he accurately reported numerous diligent steps, such as serving the law firm that prepared the owner’s quitclaim deed, serving the mortgagee on the property, visiting the property and talking to neighbors, checking city and suburban phone directories, and checking voter registration records, but where he failed to follow up on a lead that the owner may have been in the hospital). Our case does not concern the failure to investigate a single lead balanced against an otherwise thorough and accurately reported search.
¶ 56 Recently, the Fourth District provided context for the Jones principle by stating that, while
5. Giordano’s Remaining Challenges
¶ 58 Giordano argues that the “diligent inquiry” requirement is limited to searches within the county in which the property is located. Giordano cites no case law for this proposition. In fact, it appears that courts have not addressed the territorial limitations of a diligent search since 1901, when our supreme court held that a diligent inquiry is to be made without reference to county lines. Glos v. Boettcher, 193 Ill. 534, 536 (1901).
¶ 59 Giordano argues that the following portion of the Property Tax Code does place territorial limitations on a diligent search for the owner:
“If any owner or party interested, upon diligent inquiry and effort, cannot be found and served with notice in the county, then the person making the service shall cause a copy of the notice to be sent by registered or certified mail, return receipt requested, to that party at his or her residence, if ascertainable.” (Emphаsis in Giordano’s brief.)
35 ILCS 200/22-15 (West 2010) .
Giordano misreads the plain language of the statute. This portion of the statute in no way states that a tax purchaser’s diligent search for the owner is limited to the county in which the property was located. To the contrary, it states that, if the owner cannot be found and served with notice in the county, then the next step is to ascertain the owner’s residence, regardless of the county.
¶ 60 Each case presents unique circumstances that dictate the bounds of a reasonable, diligent search. See, e.g., Apex, 225 Ill. 2d at 231. Here, the property at issue was not residential property. Where a purchaser tries to obtain non-residential property, he or she can reasonably anticipate that the owner will reside elsewhere, perhaps even outside the county. In any case, regardless of whether Giordano was required to search outside the county, he represented that he did. All of the contact addresses listed on the pertinent documents were outside Boone County (in Lake Forest, Barrington, and Chicago), and Giordano represented that he inquired at these addresses.
¶ 61 Giordano next complains that the trial court erred in considering his intelligence and his knowledge and experience in the area of tax sales. Giordano also contends that the court placed undue emphasis on his familiarity with computers, having worked at Motorola. We disagree. A party’s intelligence and experience is clearly relevant to the question of whether that party made an honest mistake or whether that party acted deceptively. Courts have considered this factor before.
¶ 62 Giordano next argues that the trial court erred in failing to consider his argument that Trzaska is not entitled to relief under
¶ 63 We affirm the trial court’s ruling on the
B. Cross-Appeal: Sanctions
¶ 65 In his cross-appeal, Trzaska argues that the trial court erred in denying his petition for
“A party who is not represented by an attorney shall sign his pleading, motion, or other document and state his address. ***. The signature of an attorney or party constitutes a certificatе by him that he has read the pleading, motion or other document; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. ***. If a pleading, motion, or other document is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion or other document, including a reasonable attorney fee.”
Il. S. Ct. R. 137 (eff. Feb. 1, 1994) .
¶ 67 In his initial brief, Trzaska stresses the fraudulent nature of Giordano’s affidavit. However, there is no controversy here. The trial court already agreed with Trzaska on this point. We affirmed the trial court’s ruling that Giordano procured the deed through the fraud and deceit of his affidavit.
¶ 68 More to the point, Trzaska argues for the first time in his reply brief that the trial court erred by considering his, Trzaska’s, actions in determining whether he was entitled to have sanctions imposed upon Giordano. Again, the trial court stated that it “did not believe” Trzaska when Trzaska stated that the clerk allowed him to write a check with only one PIN or that the clerk told Trzaska he did not need to fill out change-of-address paperwork. Additionally, the court stated that, had Trzaska contacted his attorney immediately upon knowledge of the tax sale, the entire matter could have been resolved likely within one or two hours, and no more than 10 hours, of a competent attorney’s time. Trzaska cites Heckinger v. Welsh, 339 Ill. App. 3d 189, 192 (2003), for the proposition that “the rule’s focus is exclusively on the party’s action of filing an unreasonable pleading,” and, therefore, his own actions are irrelevant.
¶ 69 Trzaska raises this challenge to the trial court’s ruling concerning the relevance of his own actions for the first time in his reply brief. Arguments not raised in the initial brief and raised for the first time in the reply brief are forfeited.
¶ 70 We understand that forfeiture is a limitation on the parties, and not the court. People v. Kliner, 185 Ill. 2d 81, 127 (1998). Still, forfeiture aside, we would be reluctant to extend the case law cited by Trzaska to the instant case. None of the cases cited by Trzaska in his reply brief are tax deed cases. See, e.g., Heckinger, 339 Ill. App. 3d at 190 (plaintiff pursued judgment for notes he knew to be fully or partially paid and was, therefore, deserving of sanctions despite the defendant’s failure to appear); In re Marriage of Schneider, 298 Ill. App. 3d 103, 110 (1998) (spouse in a divorce proceeding improperly alleged without adequate investigation that the other spouse’s paramour was hiding marital assets); Ashley v. Scott, 266 Ill. App. 3d 302, 306 (1994) (insurer, acting as subrogee of passenger, failed to investigate a negligent entrustment claim against driver and based the claim upon four unrelated moving violations that occurred 14 months prior to the accident). Unlike Heckinger, Trzaska’s dilatory or negligent actions were not subsequent to the complained-of motion; rather, Trzaska did not follow the law requiring him to pay property tax and this precipitated the pеtition of which he now complains. Trzaska knew the tax sale was going to take place and, therefore, had the ability, particularly with the help of his attorneys, to resolve the matter. In other words, although it was not Giordano who officially contacted and notified Trzaska (and who proceeded to falsely inform the court as to the diligence of his efforts), Trzaska was on unofficial notice that his property was subject to loss through the tax
¶ 71 If we were to set aside the trial court’s reasoning, we would be virtually mandating sanctions in every case where a tax deed was vacated based on “fraud and deception” under
¶ 72 We did consider awarding sanctions for the amount hinted at, but not ordered, by the trial court, i.e., for attorney fees of not more than 10 hours. Trzaska would have been in some legal trouble no matter who had purchased the taxes, even if the purchaser followed all the recommend protocol. Again, the trial court found “completely unbelievable” Trzaska’s stated efforts to prevent the loss and found that the entire matter could have been remedied with one or two hours, and certainly no more than 10 hours, of a competent attorney’s time. However, in light of the deferential standard of review and in light of Trzaska’s failure to raise until his reply brief this challenge concerning the trial court’s consideration of his, Trzaska’s, actions, we will not award sanctions.
III. CONCLUSION
¶ 74 For the aforementioned reasons, the judgment of the trial court is affirmed.
¶ 75 Affirmed.